Torts Outine

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TORTS:WEEMS 

SPRING 2010

“One Call That’s All” WRONGFUL DEATH A. 2 Part Part Test Test 1. Interes Interestt protecte protected? d? – Interest Interest of of person person not to be kill killed ed 2. Basis of liabilit liability y – any culpable culpable conduct conduct (negligence (negligence,, intentional, intentional, SL) SL) B. Comm Common on Law: Law: 2 Rul Rules es 1. Tort action failed (abated) if either party died prior to final judgment -only applicable to torts (not K’s) 2. No action for wrongful death available -couldn’t place value on life -this was changed by Lord Campbell’s Act which led to survival statutes C. Surviv rviva al 1. Su Surv rviv ival al St Stat atut utes es – Cause of Action Survives —All states have statute that allows cause of action whether either party is living or dead (no abatement) a. Majority – Party must be survived by statutory beneficiary who was financially dependent on deceased or no cause of action exists

*also majority for wrongful death actions (Lord Camp. Acts)  b. Minority (MS) – Any time D’s wrongful act causes injury, the action is available by personal representative of estate 2. MS Survival Statutes a. Allow cause of action for personal injury suffered by deceased during his lifetime….but NOT for wrongful death! *wrongful death actions must be brought under that statute and the injuries must have actually caused the death….ex-smoking case *so…. if any doubt as to causation, plaintiff should file action under BOTH survival statute and wrongful death (which allows more recovery) b. The action must must be brought by the personal representative of the estate c. If either party dies before final judgment judgment then the personal representatives of that party shall defend or prosecute such cause of action (after filed) d. Damages include all types of general damages (pain and suffering and disability up to point of death, loss of income, medical expenses) MS has SOL D. MS § 11-7-13 – Wrongful Death Statute 1. Allows Allows recovery recovery for ANY ANY act that that if it had merely merely injured injured plaintiff plaintiff he would would have had cause of action even though it caused wrongful death ex) negligence, intentional tort, strict liability, breach of warranty 2. Act must be both but-for and proximate cause of death to recover under this statute!! May recover under survival statute if not actual cause of death though??   though?? 3. SOL begins to run at the date of death and correlate with the type of action   being brought…..ex) intentional conduct=1yr negligence=3yrs 2. Who can bri bring ng a wrongfu wrongfull death death action? action? 1

 

a. Group 1 – Spouse and Children – all in this group split damages if alive  b. Group 2 – Parents and Siblings and in some cases, nieces and nephews if  their parents predeceased them– if no one in group 1, then all in this group split damages If no one in group 1 or 2 then personal representative can maintain action and damages will go to estate c. Half Half sibli sibling ng entitl entitled ed to to same same share share as full full sibling sibling d. Illegitimate and adopted children also share evenly f. Unborn Children – suit can be brought provided it is viable at time of death (“Quick with Child”) g. Only one cause of action may be brought….all parties must be joined *Miss. wrongful death statute is NOT a Lord Campbell’s statute as it does NOT restrict recovery to designated beneficiaries who are financially dependent on decedent; Miss. statute allows personal allows personal representative of estate to bring wrongful death action on behalf of estate (no notecard) E. Damages Medical Expenses Pain and Suffering of Decedent—only if not killed instantly Loss of Society and Companionship—of each family member  •







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Property Damage—if applicable Funeral Expenses Value of Decedents Work Expectancy—reduced to PV by calculating inflation and discount rate  NO recovery of Hedonic Damages allowed!! (“enjoyment of life”)

F. Defenses 1. Wron Wrongf gful ul deat death h iiss a derivative cause of action – any defense that could be raised in original cause of action can be brought in wrongful death action against st B and A dies before going to trial. B’s wrongful act A has a survival action again was not the cause of A’s death. If the SOL has not not run, after A’s death, his person representative representati ve can bring the lawsuit or or continue one A started. If successful then the personal representative can recover the damages A suffered caused by B’s wrongful death up to A’s death. The proceeds go into A’s estate. INTENTIONAL TORTS Introduction I. Two part test to identify a proper TYPE of tort Cause of Action: Ask for Each Tort What interest does this cause of action serve to  protect ? What kind of conduct does the cause of action serve to  prevent ? -Intentional conduct -Negligent conduct.....unintentional conduct -Strict liability II. Plaintiff must prove 2 things in ALL intentional tort cases: 1. That a protected interest has been violated •



2. Violation Violation of protected protected interest interest was was done done intentionall intentionally—2 y—2 Ways Ways below below 2

 

Assault—created to protect the interest to be free from fear of an imminent, harmful or offensive contact. Battery—created to protect the interest to be free from harmful or offensive touching Battery—created of the person (contacts with the body). It protects this interest from intentional intentional conduct. A question to ask is whether the violation was done d one intentionally? intentionally? Negligence COA invented to protect the interest from personal harm. Designed to prevent negligent conduct. GENERAL

A. Intent: May be Proven in 2 Ways 1. Defend fendaant nt’s ’s purpose of act was to cause invasion of protected interest, or  2. Defe Defend ndan antt had had knowledge that invasion of protected interest was substantially substantiall y certain to occur following his act – not absolute certainty Substantially certain= something is going to happen unless some intervening force stops it; more than a serious risk the event will occur  Defendant must have actual knowledge that events will occur in order to have done it intentionally…..opposed to negligence RPP/objective Mere knowledge and appreciation of a risk does NOT equal intentional  conduct unless substantial certainty present Ultimately, the ∆’s conduct must have been unlawful or “without legal  justification” but π has no burden to prove this (D proves was lawful) Driving to Jackson 120 mph is not intent. It is reckless reckless and negligent. The intent must be to invade the protected interest. *Note: a minor may possess intent and thereby be liable for an intentional tort  but age will be material in regards to knowledge and experience of actor  *Note: in MS employees may only sue employers for intentional torts ONLY if  it was employers purpose to cause injury (sub. certainty is NOT enough) •







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Negligence v. SOL is 3 yrs. *proximate cause narrow employee can’t sue employer *contr. negligence a defense *punitive damages harder no nominal damages

Intentional Conduct SOL is 1yr. proximate cause broader   can sue if purposeful conduct NO contr. negligence defense punitive damages more likely nominal damages awarded (ex-trespass)

*Negligence involves a foreseeable risk that can be either known or unknown to whereas intentional torts require actual knowledge of a known danger that is either  intended or substantially certain to occur – difference is a matter of degree 4.  Mistake – NOT A DEFENSE 3

 

a. mistake as to ID of person or property does NOT negate intent  b. Ex) trespass trespass on land defendant thought he owned owned or cutting cutting wrong wrong timber  timber  5.  Insanity – NOT A DEFESNSE a. Insane people are liable liable for their intentional intentional actions actions (same (same as negligence) negligence)  provided that plaintiff is able to prove requisite intent  b. Policy Policy reasons reasons:: Same Same as negligen negligence ce - Encourage those with interest in estate to care for insane persons - Prevent fraud and difficulty in proving insanity c. Voluntary intoxication also does not vitiate intent 6. Transferred Intent – 2 Part Test 1. D must have intended to invade interest of ONE party 2. D must have had no right to invade interests of ANY party; then D is liable to whomever interest he invaded. ONLY applies to 5 intentional torts in Trespass Writ of Common Law: 1. Battery 2. Assault 3. F Faalse Im Imprisonment 4. Tr Trespass to to La Land 5. Trespass to Chattels *so Defendant must intend  and accomplish one of 5 for doctrine to apply BATTERY

A. 2 Part Test (P’s burden or proof) 1.  Interest Protected ? Protects right of person to be free from harmful or offensive contacts with the body or something attached to the body. 2.  Basis of Liability? Intentional conduct B. In order order to make make out prima facie case, case, P must prove: prove: 1. D’s act caused harmful or offensive contact 2. D acted intentionally: -purpose was to cause contact or done with a willful or  unlawful purpose OR  - Knowledge that such contact was substantially certain to occur  3. Act was the proximate cause of injuries…..ALWAYS! •

Cause in fact Legal cause 4.  Damages occurred C. Harmfu Harmfull or offensiv offensivee conduc conductt 1. Physical contact not required. required. Battery Battery iincludes ncludes touching of anything attached  to the body (ex- clothing, plate in hand, cane)(but words alone not enough) 2. Pl Plai aint ntif ifff doe doess NOT have to be conscious of the act at the time! (unlike assault) 1. Absenc Absencee of conse consent nt is req requir uired ed 2. Consent will be assumed assumed if contact contact is customar customary y or reasonable reasonable (ex-tap (ex-tap on arm) arm) D. Ordinar Ordinary y Sensibi Sensibilit lities ies Test Test 1. Unless the D has reason to believe believe otherwise, otherwise, the test is would the the contact be harmful or offensive to a person of ordinary sensibilities - NO hypersensitivity allowed…..unless D has special knowledge of such E. Damages •

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1.  Eggshell Rule – D is still liable for unforeseeable resulting injuries so long as the D intended the offensive contact 3.  Emotional Distress – P does NOT have to prove a physical injury as a result of  emotional distress to recover; also can recover for pain and suffering. (See page 37 of the Fisher case). ASSAULT

A. 2 Part Test – Weems Weems hasn’t said anything about a 2 part test yet. 1.  Interest Protected ? Right of person to be free from reasonable  fear of  imminent harmful or offensive contact with the body (battery). Talk about future conduct is not enough. 2.  Basis of Liability? Intentional conduct B. Pr Prim imaa Faci Faciee Case Case 1. D’s act caused P to be in reasonable fear of imminent harmful or offensive conduct 2. D acted intentionally Intended or Substantial Certainty that P. would be put in position 3. Act was the proximate cause of injuries…cause in fact and legal cause •

4.  Damages occurred – damages are purely emotional distress! C. Fear of Imminent Battery (See Western Union case on pp 38) 1. Consciou Consciousne sness ss Requir Required ed – P must must be aware of the conduct for an assault 2.  Imminent – Fear must be imminent to RPP; future threats are NOT enough! 3.  Reasonable – Objective ‒ conduct must be such that an ordinary reasonable  person would perceive fear of imminent contact (ordinary sensibility test) Question for jury usually 4. Words ords Alon onee Traditional Rule- words alone not enough….must be some overt act Modern Rule – some courts do not require overt act and allow action 5. It is not required that the D has the actual ability to carry out the threatened contact so long as a RPP would think that he can (ex-pointing unloaded gun) 6. Assault and Battery in civil law are two separate actions (unlike criminal law) so •

you can have an assault without a battery and vice versa  versa   Damages recoverable for assault are emotional distress. The P. has to to be conscious of the assault. Every battery does not include an assault, most do. If her back  was turned and he hit her, there would be battery with no assault. Assault and battery are two separate causes of action. It is true that often times when you have battery, you also have assault. FALSE IMPRISONMENT A. 2 Part Test 1.  Interest Protected ? Right of person to be free from confinem confinement ent against one’s will. There is no precise definition of confinement. Even leaving town. 2.  Basis of Liability? Intentional conduct B. Prima Facie Case (elements) 5

 

1. D’s act caused P to be confined against his will 2. D acted intentionally…accidental confinement is NOT enough Intended to confine or was Substantially Certain to confine 3. Act was the proximate cause of injuries 4.  Damages occurred – Mental Distress 5. The P. P. must must know know that they were were confine confined d to C. Confinement – restricting a person from leaving a certain area at all (does NOT include preventing a person from going in a particular direction) *“direct restraint of the physical liberty of another w/out justification” 1. P must be aware of confinement….consciousness is required! -can be intoxicated and still conscious or not even remember confinement 2. Must be against person’s will….P cannot voluntarily be confined Voluntary can change to involuntary if person is not allowed to leave Denying person of reasonable means to exit is False Imprisonment 3. P must have no reasonable means of escape in order for confinement 4. Must be a threat of force….implicit or explicit (but future threats not enough) 5. Can restrain restrain someone physically, physically, by threat of force, force, or by keeping keeping his or her   personal property (hard to prove) 6. False arrest – term for false imprisonment by a police officer – when one is •





have legal to authority taken into custody by a person who does not *Affirmative Defense/Privilege = having lawful reason do so to do so

INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS

A. 2 Part Test 1.  Interest Protected ? Right of person to be free from severe emotional distress 2.  Basis of Liability? Intentional conduct  Note: emotional distress have evolved into a separate cause of action itself  B. Prima Facie Case – 4 Elements P must prove: 1. Cond Conduc uctt mu must be intentional OR reckless  Note: reckless is added here by Restatement but most courts disregard this as intentional and even sub. certainty requires higher culpability than reckless * If conduct IS directed at the P, then for conduct to be intentional: 1.  Purpose is to cause severe emotional distress 2. Act was done with knowledge that severe emotional distress is  substantially certain to follow *If conduct is NOT directed at the P, then for conduct to be intentional: 1. Conduct must be done with the plaintiff present (saw it or heard it) 2. ∆ must have knowledge that the plaintiff was present AND 3. P must suffer bodily injury themselves OR conduct must have been directed at their nuclear family 2. Cond Conduc uctt mu must be extreme and outrageous – “if conduct exceeds all bounds tolerated by a decent society”  Note: this ONLY applies to private П’s…..public П standard below if conduct involves a publication  6

 

3. Causal connection between the wrongful conduct and emotional distress 4. Emot Emotio ional nal di dist stre ress ss mus mustt be SEVERE – to even allow recovery at all -“so severe that no reasonable person could be expected to endure it” C.  Distinguish: Intentional v. Negligent 1. Intentional emotional distress requires NO physical injury…just must be severe -although E.D. damages for other intentional torts need not be severe 2. Negligent emotional distress requires a “medically cognizable” physical injury C. Plaintiff’s Plaintiff’s subjective subjective sensibilit sensibilities ies are relevant relevant and may may be a factor; even even if the  plaintiff is hypersensitive….. D’s knowledge of such will also be a factor   Note: If a public official brings an action for emotional distress and the conduct involves a publica publication tion of fact, then П must prove the publication was done with knowledgee of falsity or reckless disregard….opinions cannot be basis of action knowledg TRESPASS TO LAND

A. 2 Part Test 1.  Interest Protected ? Right of person to exclusive possession of real property *unauthorized entry onto another’s land…by person or some thing 2.  Basis of Liability? Intentional conduct  No such thing as negligence trespass…simply a negligence claim in which actual damages must be proven. Negligence requires damages *No actual damages required for trespass action –  nominal damages are recoverable so P can assert rights….to “quiet title” or action for ejectment B. Contrast: Nuisance Nuisance v. Trespass Difference is the RIGHT that is being interfered with to determine which action lies; right to exclusive possession v. right to the use and enjoyment B. Tres respas pass must be committed by a tangible mass coming onto land…must be a  physical invasion of property (traditional rule that has become more flexible) 1. Airborne Airborne particles particles must must accumulate accumulate on land land and do not not dissipate dissipate for trespass trespass 2. Can Can o onl nly y rec recov over er if actual damages are shown in regards to airborne particles 3. Nuisance — if airborne particles quickly dissipate or simply pass through •



C. Change in status – A person or thing’s status on the land can change (go from non-trespass to trespass based on time, space, or purpose of invitation) -if person or thing “exceeds the scope of the invitation” -ex) “continuing trespass” of thing OR person stays past closing time D. Areas above and below land 1. Airspac Airspacee – Trespass Trespass prote protects cts airsp airspace ace withi within n the “immediate reaches” of the land ….actual portion that plaintiff can be make use of  3. May have have tres trespass pass below below the surface surface as well well E. Consent — must common affirmative defense/privilege for intentional torts  statutory cause of action TRESPASS TO CHATTELS –  statutory

A. 2 Part Test 1.  Interests Protected ? 7

 

Right of person not to have his personal property damaged Right of person not to be deprived of use of the chattel 2.  Basis of Liability? Intentional conduct B. Prima Facie Case – Defendant liable for trespass to chattels if: 1. Chattel is damaged – impaired as to its condition or value 2. Pos osssessor iiss deprived of his use of chattel for a substantial period of time 3.  Bodily harm is caused to the possessor OR to a legally protected interest of the  possessor (ex- his business) 4.  Dispossesses other of the chattel….physical dispossession C. Othe Otherr Ele Eleme ment ntss 1. P must must show show actua actuall dama damage ges—  s— “harmless intermeddling” is NOT enough!! *damages include actual damages to chattel or damages for loss of use 2. P authoriz authorized ed to use reasona reasonable ble force force to stop interm intermeddl eddling ing 2. Trespass Trespass to chattels chattels is survived survived today today to allow allow recovery recovery for unauthorized unauthorized use of   personal property not sufficient to establish conversion (higher damages) •



CONVERSION pp. p.85 The intentional exercise 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.pp. 82 A.  Interest Protected? – Freedom from another exercising dominion or control over   personal property/ right to not have property substantially impaired / right to not have property deprived of its use for a substantial period of time  Basis of Liability? Intentional conduct 1.  Definition – Exercise of  dominion or control over a chattel which so seriously interferes with the right of another to control it that D may be required to pay the full value of the chattel An action for conversion asks the court to sell the property and the D. will have to  pay for it (the FMP at the time of the conversion). 2. Factors: Seriousness of Interference — must be SUBSTANTIAL Extent and duration of interference • •

Extent and duration of exercise of control Actor’s intent to assert a right in chattel…inconsistent w/owner’s Actor’s good faith Harm done to chattel  Note: Where the intermeddling does not completely or substantially deprive owner  of his possessory right the tort is merely trespass to chattels -act must be serious enough to warrant D paying full value 3.  Damages – Full market value of property at the time of the conversion *BUT! The defendant gets to keep the chattel upon payment! (“buys it”) 3. Intellectual Intellectual Property Property – can be converted converted so long as property property (info. (info. w/ w/ $ value) value) 4. Ways Ways in Which Which Conve Conversi rsion on may may Occur Occur:: Acquire possession (steal it) •

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Damaging or altering it (intentionally run over animal and kill it) Using it (bailee seriously violates terms of bailment) 8

 

Receiving it (obtain possession after purchase from thief) thief) Dispose of (bailee wrongfully sells chattel) Misdelivering it (deliver to wrong person by mistake) Refusing to surrender surrender it (bailee refuses to return chattel)  Note: innocent mistake is not a defense to conversion or trespass to land/chattels •

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PRIVILEGES * Affirmative Defenses to Intentional Torts --to Plaintiff’s Prima Facie Case * Defendant has the Burden of Proof  on the preponderance of the evidence--

A. Consent 1. Objective standard – Would a RPP in the D’s position under the circumstances have thought that P consented? -considers surrounding circumstances to ascertain P’s consent In the vast majority of situations a person cannot consent to something and then sue somebody for what they consented to. Ex: Would a reasonable person in the place of the the D. believe that she consented to the vaccination? 3.

orby misinformation Consent by misrepresentation is contributed not valid consent If the D. obtained knows there is misapprehension the P. or the D. to a misapprehension of the facts, there is no consent. Ex: birth case with with rando. 4. Physicians – general rule is must get informed consent to operate (express) *Exception: Where consent is implied…doctor will use as defense: Elements 1. Patient is unable to give consent – intoxicated, unconscious, ill 2. There is a risk of serious bodily harm if delayed – emergency 3. A RPP would consent to treatment AND 4. Physician has no reason to believe this particular patient would refuse

5. Withdraw of Consent by Patient Before Surgery……..physician must conduct new informed consent During Surgery…..withdrawl must be clearly made in sound mind AND must be medically feasible to stop 6. Minor – consent of parent needed for any medical procedure 7. Consent to illegal activity – 2 views Maj. – P cannot consent to illegal activity (can still maintain action) Min. – P can consent to an illegal act (ex- prizefighting)  Note: As a practical matter most non-consented to operations are brought under  negligence instead of battery; but D might want to claim the act was intentional if  the one year S.O.L. has run b/c negligence still has 3 yr. window •



Any consent obtained by fraud or misrepresentation is not consent at all..see De May v. Roberts p. 100. “The fact that P consented to the presence of Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character.” 9

 

B. Self-Defense: Use of Force 1. When When?? – Whe hene neve verr iitt reasonably appears that force is necessary to protect oneself against imminent battery (RPP-objective) 2. How Much? ‒ As much force as reasonably appears necessary 3. How Long? ‒ As long as necessary, but no longer  2.  Retaliation – NOT privilege; privilege stops when threat to oneself stops (When can you use deadly force? When If person was initially aggressor and has retreated, he does have right to self-defense against person he initially threatened 3.  Provocation - Insults, verbal threats alone do not justify use of force in self  defense If abusive word are accompanied by actual threat of physical harm, then may be privileged to defend 4.  Deadly Force‒ Force that is calculated to kill or seriously injure person *may only use when it appears reasonably necessary to do so 5.  Retreat – Maj. Maj.‒ may use whatev whatever er forc forcee neces necessar sary, y, even even deadly deadly force force Min. – Must “retreat to wall” rather than use deadly force 6.  Defense of Others‒ may use force reasonably necessary so long as person   •



 protecting or as close 6.  Mistake Rule –family As long the friend mistake was

R/ (if R/ believed was in physical

danger), D can assert self defense D. Defense of Property 1.  Reasonable Force – A person is privileged to use the force reasonably necessary to prevent the taking of property 2. One cannot use force when they are absent that they could not use it they were  present…………ex) loaded spring gun or traps 3. Deadly Force ‒ General Rule--deadly force to protect property NOT allowed Exceptions: 1) someone breaking into your home and threatening you or  family then may use deadly force (castle doctrine) (Defense of person not property) 2.

2) MS allows to prevent commission of a felony MS “Castle Doctrine” Statute (MS 97-3-15) -In self defense from being killed, killing is allowed. - in the commission of a felon -a person who has unlawfully entered a dwelling, car, kidnapping, etc. -allows deadly force in self-defense or defense of others -NO duty to retreat -person who used force is presumed to have reasonably feared death

Recovery of Property – repossessing taken chattels Case of Hodgeden v. Hubbard p. 114. a. General Rule = can’t use use force force to recover recover property property b/c it’s it’s easy easy to file file a writ writ of replevin E.

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1.  Fresh pursuit rule – Owner

can use some reasonable force to retake property which has been obtained by force or fraud and pursuit is fresh Fresh Pursuit = prompt discovery of dispossession and persistent efforts to recover...if any undue lapse of time owner must use replevin (legal remedy Reasonably Force = NOT deadly; may only be used after request for   property has been made and denied

Conditional Sale of Good: The retaking of possession by a seller under a conditional sale, on default by the  buyer, is now controlled by ss 9-503 of UCC: “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace.” Self-Help – If the owner can locate the taken property, he may retake the  property if the can do so without breaching the peace (repossession) -if peace will be breached, owner must use replevin action 3. Shopkeeper’s Privilege - merchants have privilege to detain suspects for a reasonable investigation if there are reasonable grounds to believe suspect has shoplifted (RPP standard) - this doctrine is used as a defense to lawsuits by accused shoplifters - extends to people who have left premises but in vicinity - re reas ason onab able le mis mista take kess are are a defe defens nse! e! Shopkeeper will not be liable if  jury  jury finds two things: 1. The shopke shopkeepe eperr had reasona reasonable ble (RPP) (RPP) ground groundss to search search 2. Inv Invest estigat igation ion that that procee proceeded ded was was reasona reasonable ble..  If D reasonably believed the P had unlawfully taken goods held for sale in the defendant’s  store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts. 2.

SEC. 97-23-95. Shoplifting; detention of suspect for questioning without incurring civil liability.

If any person shall commit or attempt to commit the offense of shoplifting, or if any person shall wilfully conceal upon his person or otherwise any unpurchased goods, wares or merchandise held or owned by any store or mercantile establishment, the merchant or any employee thereof or any peace or police officer, acting in good faith and upon  probable cause based upon reasonable grounds therefor, may question such person in a reasonable manner for the purpose of ascertaining whether or not such person is guilty g uilty of shoplifting as defined herein. Such questioning of a person by a merchant, merchant's employee employee or peace or police officer shall not render such merchant, merchant's employee or peace or police officer civilly liable for slander, false arrest, false imprisonment, malicious prosecution, prosecution, unlawful detention or  otherwise in any case where such merchant, merchant's employee or peace or police officer acts in good faith and upon reasonable grounds to believe that the person questioned is committing or attempting to commit the crime of shoplifting.

F. Necessity – may be a defense to taking property of another  1.  Public – If it is for the benefit of the public, an intentional tort may be committed if necessity exits….ex) destruction of property/conversion *Plaintiff may still have takings claim though under 5 th Amendment 2.  Private – If D intended their actions to protect their private property at the expense another’s the D will be“act liable  Note:ofaction mustproperty, be intended….NOT of God”, but God”, but ship/dock case 11

 

G. Authority of Law – If D is duly commanded or authorized by law to do what he does, he is not liable for doing it if done in scope of employment 1.  Discretionary – D will not be liable 2.  Ministerial (not a matter of choice) – Agent will not be liable but gov’t will be  Note: employee must be in scope of employment, if not will be personally liable H. Discipline 1. Corporal punishment by teachers –Must be reasonable and procedural guidelines followed 2.  Parent corporal punishment – In jurisdictions where parent child immunity has  been abolished, the child may have a COA against parent (not in MS) MS – full parent-child immunity unless in car accident •

I. Justification 1. NOT a privilege in many jurisdictions! 2. Where it is a privilege, it effectively allows D to defeat P’s cause of action by  proving that D did what a RPP would have done under the circumstances 3. Burden of proof shifts to D 3.

Vast - If defendant going to claim a privilege, thennecessity, must assert one of theMajority named defenses aboveis(self-defense, defense of others, etc.) 1. Responding Responding to name calling is not a defense—coul defense—couldn’t dn’t even even introduce introduce evidence. **If you are going to bring an intentional tort, your cause of action must be a recognized one. If D wanted to say Ok I did that but I had a privilege to do it. The ct asks what privilege? D then might say self-defense, recovery of property etc. but it has to be a recognized privilege in particular. Currently, you cannot just say “what I did was reasonable”

J. Mitigating Circumstances 1. Most jurisdictions (MS) allow D to introduce evidence to mitigate damages Ex) while verbal provocation is not a defense it may allow D to mitigate no fault necessary for liability  STRICT LIABILITY— no A. Trespassing Animals The CL rule: Owners of animals of a kind likely to roam and do damage is strictly liable for their trespasses. Restatement of Tort (3rd): It notes that animals cannot trespass (because they are incapable of intent) and suggests instead “intrusion” 1.  Majority Rule – There is strict liability for trespassing animals (includes MS) a. P mus mustt p pro rove ve only only th that at:: 1) Animal belonged to OR in possession of defendant…either liable

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2) Animal caused the type of damage a trespassing animal would normally cause to P’s property  b. Rule Rule not not appli applicabl cablee tto o dogs dogs and cats MS follows the CL strict liability: there is strict liability for trespassing animals 2. MS § 69-13-111 – If animal gets on state or fed. hwy, & causes injury, then owner is presumed negligent . BOP shifts tto o D to prove not negligent. a. First rule deals deals with with fed. or state state highways—i highways—iff animal animal causes causes accident, accident, there is no SL, but when P. brings lawsuit it will be a negligence suit,  but negligence on the part of the owner will be presumed.  b. If on any other other road, road, county highway highway,, city street, street, etc.—the etc.—then n it is a straight negligence case. The P. will have to prove the owner owner was negligent in letting it get loose. *Action here is for negligence!……basically becomes res ispa case If animal on any other road, no presumption of negligence and BOP on π •

CL B. Dangerous/Wild Animals 1. Wild Animals – Owner/Keeper of wild animal is strictly liable for damage caused by the animal 2.  Dangerous Domestic Animals –Strict liability will be imposed if P can prove the owner knows or has reason to know domestic animal has vicious propensities. *Knowledge that animal has “dangerous propensity abnormal to its class” *If P cannot prove owner’s knowledge of this then must prove negligence (Strict liability will not apply). 3. Note: If If people are are on the premises premises then classif classification ication system system would would apply apply too 4. Per say, no dog is a wild animal (but vicious propensities could create strict liability) C. St Stri rict ct Lia Liabil bilit ity y for  for Abnormally Dangerous/Ultrahazardous Activities 1.  Rylands v. Fletcher  (know this case as associated with this COA) – Developed new cause of action imposing strict liability for unnatural uses of  land/abnormally dangerous activities Synopsis of the Rule: when a non-natural use of land is made, the D is absolutely liable for all of the damages occurring to others due to the non-natural use. Reasoning was that D introduced the element that caused the harm to the land, so D should be liable....owner “must keep them at his peril”  st  2. 1 Restatement – ‘ultrahazardous activity” Case of Miller v. Civil Constructors, Inc. •

a. 2 Part Part Test Test (ques (questi tion on of of llaw aw)) (MS following this approach) Activity involves a risk of serious harm which cannot be eliminated by the exercise of utmost ( rreasonable) easonable) care. Activity is not a matter of common usage (i.e. blasting Fails or passes? passes? •



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 b  b.. Mino Minori rity ty vi view ew now now nd  3. 2 Restatement – “Abnormally dangerous activity” Rule: Owners and users of land who conduct abnormally dangerous activities or  conditions are strictly liable for harm to person, land, or chattel even though the utmost care was exercised a. 6 Fac Facto tors rs:: For For Judg Judgee (always for Judge) to Weigh (question of law)  High risk of some harm (page 727)  Likelihood resulting harm would be great Inability to eliminate risk by exercise of due care Extent activity is not of common usage  Inappropriateness of activity to place Social value v. Dangerousness (balancing test for public policy)  b. Factors Factors depend depend on circums circumstanc tances es and nature nature of locati location!! on!!!! c. Mainly applicable to USES of land – activities not substances •







• •

Strict liability is always a question for the judge. It is not for the jury to decide. 4. Types Types of activit activities ies held held to be abnorm abnormally ally dange dangerou rouss a. Toxic oxic Chem Chemic ical alss

ust ing g  c. j. C Furop migDaus tiotnin k. Blasting - most common 5. Question of whether activity is abnormally dangerous or not is always a question of law for the JUDGE only! D. Limitations Limitations on Strict Liability 1. Scope of liability‒ Strict liability is limited to liability for harm resulting from  that which makes the activity abnormally dangerous……..the “kind of risk” which makes activity dangerous in the first place Judge Asks: What risks of harm make this activity so abnormally dangerous? Was the type of harm that resulted the reason courts decided the activity was dangerous in the first place? If not, then not liable under strict liability count. i.

Comparison w/ scope of liability from other causes of action a. Scope is smaller smaller than negligence negligence which is smaller smaller than intentiona intentionall torts torts  b. Why? Why? beca because use no faul faultt iiss rrequi equired red.. Gotta get all this straight.  straight.  2.  Acts of God ‒ if injury results from act of God which owner had no reason to anticipate……must be unforeseeable act of God 3.  Assumption of Risk ‒if plaintiff voluntarily encounters the known risk with full appreciation of its magnitude a. most states now merge this with contributory negligence but assumption of  risk requires a higher degree of contributory negligence!......be careful  b. applicable to both wild animals and abnormally dangerous activities ex) P with full knowledge of vicious propensities of animal encounters it -fault will be subtracted from 100% since D strictly liable

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 Note: Contributory negligence is still NOT a defense to intentional torts but IS a defense to products liability. Contributory negligence is not a defense to a strict liability liability case. It is only a defense to negligence action. PRODUCTS LIABILITY

**  Area of tort law allowing recovery for injuries to a person or property caused by a manufactured product from manufacturer, seller, or other supplier of goods McPherson v. Buick   Synopsis of the rule: 1) if a product is reasonably expected to be dangerous when negligently made and 2) the product is known to be used by those other than the original purchaser, in the normal course of  business, a duty of care exist.

A. Development of Theories of Recovery/Ways to Assert Liability 1. Early la law – requirement of privity – could only recover if you purchased  product directly from the manufacture…..no longer required for any theory! 2.

Negligence P may sue afor injuries caused byducts defective products a. Manufacturers Manufac–turers have DUTY to make ma ke products pro carefully careful ly IF there is a foreseeablee risk of harm involved if product is not made properly foreseeabl  b. Imposed Imposed usual negligence negligence requirement requirementss – Did Did the manufact manufacturer urer act act as a reasonable prudent manufacturer under the circumstances? c. 4 Elem Element ents: s: Go Go Throug Through h on Exam Exam!! !!!! 1) Duty – above 3) Causation – but for/legal 2) Br Brea each ch of of Dut Duty y – RP RP manu manufa fact cture ure UTC UTC 4) Dama Damage gess d. Applies to ALL sellers of chattels….even if they only manufactured part e. Ways Ways ma manuf nufac actur turer er can can be neglig negligen entt Faulty design • Mis-manufacturing product •  Failure to inspect parts….most common •



Failure to warn Instruction of the use of the product *What a Reasonable Prudent Manufacturer would not have done UTC  •

3. Breac Breach ho off Expr Express ess Warra Warranty nty a. NOT NOT “puf “puffi fing ng”” (sta (state teme ment nt of of opi opini nion on))‒must must be unequivocal representation about product which seller relied on that later turned out to be false  b. P must prove: warranty both existed and was breached  Manufacturer made misrepresentation of material fact about product *must be “engaged in the business of selling chattels to public” P does not have to proof the product was negligently made P relied on the misrepresentation (cause in fact) -falsity cannot be detected by RPP P was injured as a result of misrepresentation (legal cause) •





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c. Strict Liability cause of action because do not have to prove fault OR  even that product was defective (only elements above) d. Doesn’t matter if innocent innocent representatio representation….privit n….privity y of K not required required e. Focus on what was said or written about product; not product itself  4.

Breach of Implied Warranty of Merchantability – imp impli lied ed by la law w‒ 2 Typ Types es a.  Implied Warranty of Merchantability – Implies that product is reasonably fit for its intended use……most common * “runs with the good” no matter who owns it (unlike express warranty)  b.  Implied Warranty of Fitness for a Particular Purpose – implies that  product is reasonably fit for the purpose for which it is sold *if buyer expressly or implicitly makes known to seller his purpose for the chattel and relies on seller’s skill or judgment in purchasing product c. Manufacturers cannot disclaim implied warranties! d. P’s P’s burd burden en of of proo prooff – 2 Elem Element entss 1. Product was not fit for its intended purpose 2. Plaintiff was injured as a result e. Strict Liability because P does not have to prove fault e. BIG: This action has been engulfed by strict liability in tort actions

 because implied warranties often had many contractualtodefenses by that manufacturers (ex-notice requirement for opportunity cure product) cannot be raised in strict liability in tort action (b/c lies solely in tort) 5.

 NOT absolute liability!! (must be defect) Strict Liability in Tort—  NOT a. Difference Difference from from implied implied warranty warranty is mere mere terminolog terminology y (unfit v. defective) defective) and fact this action lies solely in tort  Note: strict liability in tort is the name of the cause of action!  b. Plaintiff must prove: 1. Manufacturer made product 2. Product reached consumer without any substantial change in condition 3. Product was defective (manufacture, design, failure to warn) 4. Defect caused plaintiff’s injuries c.  Restatement 402A – Special Liability for Sellers of Defective Products One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or  consumer, or to his property, IF: p. 763-4 i. The seller is engaged  in the business of selling such products AND ii. The product reaches the user without substantial change in the condition in which it was sold Does NOT matter if: i. Seller exercised all possible care….negligence not required ii. No privity of K  iii. Consumer didn’t buy directly from seller  d. EXAM: Use the 3rd Restatement’s definitions for defects applied to §402A!!! Not “defective condition unreasonably dangerous”!!! •



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e. Strict Liability – if defect caused injury no fault is required f. Majority of jurisdictions do NOT apply strict liability to prescription drugs or medical devices…….only negligence cause of action available f. Again….strict liability in tort has engulfed implied warranty actions: 3 Actions Available Today: 1) Negligence 2) Breach of Express Warranty 3) Strict Liability in Tort/Breach of IW *In a negligence action and strict liability in tort action (but not express warranty) the plaintiff must show a DEFECT in the product — the manufacturer manufa cturer is not the “insurer “ insurer of the user’s safety”! (absolute liab) Ex) not good enough if P simply injured by product – must be defect  Strict liability is never supposed to be Absolute Liability

B. Product Defects – 3rd Restatement (2nd used catchall “unreasonably dangerous”) 1. Mismanufactured Defect – Exists if there is a flaw not found in the general  product line — isolated failure in quality control *product departs from its intended design despite all possible care a. subject to strict liability if defect is proximate cause to injury  b. product is isnevaluated against the manufacturer’s own standards c. P’s burde burden of proof proof (Preponde (Pre ponderanc rance e of the Evide Evidencence-POE POE) ) 1. ∆ manufactured and sold product which at the time has a defective condition unreasonably dangerous 2. Product reached consumer wit without hout substantial change in condition (P. (P. does not have to prove negligence in the factory. Another thing P can do is call an expert). 3. Defective condition was tthe he proximate cause of P’s injury Manufacturer will not be held liable under a negligent standard if he can show that it had the best quality control procedures in the entire industry. That would show he took reasonable care. Under strict liability standard, he will be held liable. *MS‒ assumpt assumption ion of of risk is is a complete complete defen defense se which which bars bars recov recovery ery  In Rix v. General Motors Corp. When a manufacturer sends a products into commerce, he will be held liable for any harm caused to the ultimate user EXCEPTION: IF the product is altered after it leaves the care of the manufacturer. d. KNOW: KNOW: This is is really really the only defect subject subject to to strict liability liability because because the others involve some form of negligence by manufacturer!! 2.

Design Defects – failure in design; challenges entire product line *when foreseeable risk of harm posed by a product could have been avoided by a reasonably alternative design by the seller or distributor  Involves Balancing Test: 2 Views a. Consumer Expectation Test (Minority) – Was the design more dangerous than an ordinary consumer would expect it to be? 17

 



Problems 

Ordinary consumer knows nothing about design of products Patent danger rule – If danger was open and obvious, then  the product could not be more dangerous than the ordinary consumer would expect it to be….failed to encourage safe products  b. Risk Utility Analysis – MS and Majority •



Weighs utility of product vs. risks and alternatives—if risk outweighs utility, then product is defective (much like Hand’s formula) 7 Factors: to determine whether defective: KNOW 1. Products utility to consumer and public 2. Likelihood that product will cause injury and seriousness of  injury if it does 3. Availability of a safe alternative 4. Manufacturer’s ability to eliminate the danger without impairing  product or making too expensive 5. User’s ability to avoid danger by the exercise of care in using the  product 6. User’s anticipated awareness of dangers inherent to product  because of public knowledge or warnings

7. Feasibility of spreading the loss by setting the price or carrying liability insurance  Note 4. P 783. Reasonable Alternative Design. Unlike the principal case, most jurisdictions require that the P prove an alternative feasible design in order to prove design defect. The O’Brien case is a minority view. This makes design defects cases in MS and the majority of jurisdictions a negligenc negligencee cause of action. Question ends up being “Would a reasonable prudent manufacturer, considering the 7 factors, have used a safer or alternative design? ” State of the Art Evidence: what was the state of the scientific and  technical knowledge at the time this particular product was manufactured? —The issue of whether D can avoid liability by showing compliance with the “state of the art”--considers products design in light of technology and expertise of trade at the time; evidence is admissible **Plaintiff must prove there is an alternative feasible design for the  product to win design defect case!!!(majority and MS; factor in others)  Inherent Characteristic Rule — a product is NOT defective if injury is caused by an inherent characteristic of product that cannot be eliminated without hindering product’s usefulness AND is known to general public (ex- alcohol, tobacco) MS Product Liability Statute: Design Defects i. Follows inherent characteristic rule ii. P must prove: 1) manufacturer or seller had actual or constructive knowledge of defect when product left their control AND 2) reasonably alternative design was feasible •











iii. Mfg. Assumption Prentis v. Yale Co. of risk completely bars recovery (all defects) 18

 

In a design defect against the manufacturer, the breach of  implied warranty and negligence require proof of the same elements and use of identical evidence. P must prove something is wrong with the Product itself that makes it dangerous.

Summary:   That the test which is preferred by the big majority of the  jurisdiction is the RISK UTILITY ANALYSIS. A few states use the Consumer expectation test  Feasible alternative design Note 3 @ p 777. Crash-proof cars Note 4. Category Liability and Products such as Whiskey, Tobacco, and Butter Note 8. Applicability to prescription drugs and medical devices: Most jurisdictions have declined to apply true strict liability to the design of prescription drugs, following comment K to section 402A Note 9. Because the test of design defect is risk utility analysis, and risk utility test is a negligent case. How can a strict liability cause of action be a negligence case? 3. Warning Defect  – claim that the product did not contain adequate warnings or  instructions; failure to warn or instruct of product’s foreseeable risks of harm a. Negligence standard – Is the warning or instruction as good as what would have been given by a reasonable prudent manufacturer ? *inadequate warning must be the proximate cause of P’s injuries!!!  b  b.. P mu must p prrov ovee D knew or should have known of the danger. If D did not “know” of the danger, not liable for failure to warn -but ∆ may put up “state of the art” defense that risk was not knowable in light of the best scientific knowledge at the time of manufacture *risks mustV.beOWENS-CORNING reasonable foreseeable at time of manufacture ANDERSON FIBERGLAS CORP. 786 Knowledge Knowledge or knowability is a component of strict liability for failure to warm. ***A manufacturer defendant cannot effectively warn against something that is unknowable. Ct. says there is a difference between negligence failure to warm and strict liability failure to warm. According to Weems, there are situations where a product can have a defect and the D doesn’t know of it although acted reasonably—  negligent case It is very difficult to know the characteristics of a particular product –  knowable. If it is knowable then the D should have known about it and the P can recover for any injury. 19

 

Two kinds of warning problems: No warming at all: would a reasonably prudent manufacture have given a warning to what the defect was? Most jurisdiction would treat this as a negligen negligentt case. 2. There is a warning but the P says it was inadequate warning: Would a reasonably prudent manufacture have given better instructions/warning than this manufacturer gave. 1.

Is the warning or inadequate warning as Strict liability in Tort: 3 of them A. Mism Mismanuf anufactu acturing ring defect defect strict strict liability liability B. De Desig sign n defect defect stri strict ct liabil liability ity C. War Warning ning/inst /instruct ruction ion strict strict liabilit liability y The mismanufac turing defect is strict liability. The mismanufacturing test is a negligenc negligence e standard. Read notes 4, 5 @ p. 790

c. Cannot avoid liabilit liability y by simply simply warning warning – Warnings Warnings are are not a substitute substitute for  for  a reasonably safe design (ex-warning that product is badly designed) d. NO DUTY DUTY to warn warn of obviou obviouss dangers dangers!! (patent (patent danger danger rule rule)) e. Allergic Allergic Reactions Reactions and hypersens hypersensitivity itivity – warnings warnings are required required f . Determination of whether warning is adequate is usually left to the JURY h.  Learned Intermediary Rule – when product passes from intermediary (i.e. doctor) to consumer (i.e. patient), the warning must be adequate as to the reasonably prudent intermediary i.  Read and Heeded – P entitled to presumption that the user would have read and heeded an adequate warning (can be overcome)  j  j.. Warn Warnin ings gs defe defect ct cas cases es are are a negligence cause of action – NOT S.L.! MS Statute: Warnings Defect Cases i. Adequacy of warning = duty to provide same warning a reasonable prudent manufacturer would have provided under the circumstances ii. “Learned intermediary rule” in effect iii. P must prove seller knew or should have known of  danger and that danger was not realizable by ordinary consumer  iv. Patent Danger Rule - no duty to warn of open and obvious dangers

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v. cases)

Assumption of risk is a complete defense (all defect

MS S.C. says a person cannot rely on an owner’s manual that was never read

vi.

Assumption Assumption of risk is a complete bar to recovery in products liability cases in MS.

C. Proof (This was skipped in class. Weems is not teaching it) 1. Plainti Plaintiff ff has BOP BOP by POE POE in strict strict liabi liabilit lity y tort cases cases 2. Expert Expert testim testimony ony usuall usually y requi required red 3. Subsequent Remedial Measures Rule – Rule of Evidence that says P cannot introduce evidence that D has improved product or condition since the accident occurred in ANY tort action a. Rationale Rationale – courts courts want want manufact manufacturer urer to to improve improve products products w/o worrying worrying about P bringing it up as proof of culpable conduct 4. Violation of Safety Statute or Regulation - violation of a product safety regulation or statute makes the product defective as a matter of law (defective “  per se”) D.

Defenses

p.799 807-810, 815-829, 815-829, copy of MS Products Products Liability Act. Act. MS

Sec 11-1-63

Daly V. General Motors Corp. Synopsis of the Rule: The principle of contributory negligence can be applied to strict liability cases to reduce a plaintiff’s recovery.   1. Contributory negligence  a. Note: Contributory negligence is NOT a defense to intentional torts! Also, mere contributory negligence is NOT a defense to non-products liability strict liability torts (ex- wild animals)….but assumption of risk IS a defense to these  b. Majorit Majority y – Contr Contribut ibutory ory negl neglige igence nce is a partial defense to strict liability in tort cause of action. Comparative negligence rules apply. (MS as well) -so, D’s fault will be subtracted by % P was at fault Minority – does not recognize contributory negligence at all or has limited it to cases where P has assumption of risk  MS – recognizes contributory negligence as a partial defense up until the  point where P’s fault becomes an assumption of risk , which will be a complete defense and bar recovery The Supreme Court adapts the Risk Utility analysis (in design defect) c. P’s negligence negligence in failing failing to to discover discover a defect or guarding guarding against the  possibility of a defect is not a defense….no duty to inspect Daly v. General Motors p. 799. The question is whether or not contributory negligence is a defense?

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The answer to this question is based on a predicate predicate of fairness. It wouldn’t be fair to make the manufacturer pay in full an accident that the user of the product brought upon himself. For the most part strict liability in tort is a negligent tort of action. In this case we are not talking about apples and oranges. We are talking about apples and apples. Reason: The test is whether or not RPP would have … If it’s a mismanufacturing mismanufacturing defect, then it’s a strict liability case. No negligencee involved. negligenc

2.  Assumption of Risk – most

courts allow assumption of risk as a complete defense to products liability action (not merged with contributory negligence) a. Voluntarily encountering a known danger with full appreciation of  its magnitude MS: assumption of risk overlaps with contributory negligence. In a products liability case, when the P assumes risk in a products liability case, it is a total bar to recovery. 3.  Misuse of Product – use of product in a manner other than it was intended for  a. Manufacturer is NOT liable for unforeseeable misuses of a product that cause injury…..isISa liable complete defense  b. Manufacturer  for the  foreseeable misuses of their product c. Misuse of product is typically brought under cont. negligence today Questions:  Was this product misused? It puts a strain on the product when it is used for   purposes other than intended. The Defense is that the product was not defective for its intended use. Even if the user misuses the product, that still is not a defense unless the misuse was unforeseeable. 4. Statute of Limitations – 3 yrs. in MS for negligence and products liability. 5. Federal Preemption p. 807– Where congress has completely regulated an area, the states are preempted from imposing liability for product defects a. Congress Congress must must clearly clearly intend intend to preempt preempt the the field field (legislative (legislative history); history); if not clear, the courts decide if federal law preempts state law Ex. – Congress specified exact warning to be placed on cigarettes; hence cant’ bring lawsuit against manufacturer for not providing adequate warning if it complied with government’s regulations •

E. Defendants Other than Principal Manufacturer 1. Original Chain of Distribution - §402A provides that any seller who is “in the  business of selling such products” and in the original chain of distribution is subject to strict liability (ex- retailer, wholesaler, distributor, ect.) a. Original chain is from manufacturer to 1st consumer   b. A retailer retailer or seller seller is entitled entitled to indemnity indemnity from from the manufact manufacturer urer though though c. *MS – is in minority and does NOT allow seller other than manufacturer manufa cturer to be liable unless they were also partially at fault!!!

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2.

Used dealers – no strict liability under §402A because outside the original chain of distribution…..can sue for negligence though

Occasional seller who does not hold himself to have any knowledge or skill in the commercial sense will not be subject to strict liability (ex-garage sale) 4.  Lessors and Bailors of Chattels are liable for strict liability in tort (rental car). If  there is a defect on the car rented from Hetz, you can sue both Hetz and the manufacturer of the car. The point here is that such companies get the cars new and really own them. They get to check them thoroughly. Occasional sellers are not liable. 5. A manufacturer of Component Parts or Raw Materials is subject to strict liability in tort because he is in the original chain of distribution 6.  Builders of Real Property – is also considered a seller and will be liable for   product defects injuring someone for defects in how home was built (IWH) o Subject to Statute of Repose Defense – 6 yrs. A. Other Other Suppl Supplier ierss of Chatt Chattels els Peterson v. Lou Bachrodt Chevrolet Co. Summary: P’s children were injured (one died and other severely injured) when 3.

they were struck by aand used Chevrolet. P (father of the kids) sued the driver, owner of the vehicle the1965 D (Lou Bachrodt Chevrolet Co.) TC dismissed two counts of the complaint. Each count alleged that D sold the 1965 on June 11, 1971 in the ordinary course of business and that the time the automobile left the D’s control it was defective and not reasonably safe for driving and operation. That the injuries and the death were the direct and proximate result of the defective conditions. A MUNIFACTURER IS LIABLE UNDER A THEORY OF STRICT LIABILITY IF THE P PROVE THAT  THEIR INJURY OR DAMAGE RESULTED FROM A CONDITION OF THE PRODUCT  THAT THE CONDITION WAS AN UNREASONABLY

DANGEROUS ONE AND,  THAT THE CONDITION EXISTED AT THE TIME IT LEFT THE MANUFACTURE’S CONTROL. Strict liability of a retailer arises from his integral role in the overall producing and marketing enterprise and affords an additional incentive to safety. Basic grounds supporting imposition of strict liability upon manufacturers:: losses should be borne by those who have created the risk and manufacturers reaped the profit by placing the product in the stream of commerce. P. 818 Basic grounds supporting imposition of strict liability upon retailers and wholesalers: wholesalers: their position in the marketing marketing process enables them to exert pressure on the manufacturer to enhance the safety of the product .

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In this case there was no allegation that the defects existed when the product left the control of the manufacturer. There is no allegation that the defects were created by the used car dealer. Thus imposing liability would in effect make the car dealer became insurer against defects which has come into existence after the chance of distribution was completed and the product was in the control of one or more consumers. Wal-mart has a right to indemnity from any company that makes a defective product that Wal-mart sold and it hurt somebody. somebody. Whenever someone has to pay for the wrongful act of another party, they have the right to indemnity from the party that committed the wrongful wrongful act. (The employer and employee scenario applies here. The employer has the right to be indemnify by the employee who is the wrong doer) Walmart is considered to be in the original chain of distribution. Such entities can be sued. Reason: Walmart knows a whole lot about things they sell. For ex. Blenders. Walmart is in the position to put pressure on the manufacture to make the product safe. The manufacturer may be outside the jurisdiction of the court or might have gone  bankrupt.

D.

Services – NO strict liability against a provider of services rather than the seller 

of a product Strict liability applies to conduits of distribution. Service providers such as a healer  of illness are not subject to strict liability. The essence of the relationship is a service. The items used are simply instruments to accomplish the objective of treatment. •

1.  Predominate Nature Test – if a case involves a mix of services and products (ex-mark up of parts) then court will only apply S.L. if the transaction  predominately involves a product  Courts will NOT apply strict liability if the transaction is predominantly a service, with only an incidental transfer of goods (ex- pharmacy, hospital) 2.  Blood, Blood Products and human tissues – in most jurisdictions there is no strict liability (by statute) …..unavoidably unsafe product [protection extends not only to physicians or other healthcare providers but also to commercial suppliers. 3. Doctors Doctors or pharmacis pharmacists ts proscribi proscribing ng drugs drugs that are FDA FDA approved approved are ONLY liable for negligence – not S.L. The Doctrine of Strict Liability does not extend to words or pictures. Who makes the decision whether something is a product for strict strict liability purpose? Statutes Common law It is the judge rather than the jury who decides whether the situation fits within the statutoryThe definition one to which strictof liability should apply. or product. questionorisiswhat is the essence the situation—service 24

 

E. Harm Other th than an Personal IInjury/Econom njury/Economic ic Loss 1.

Economic loss resulting from personal injury: a. Lo Lost st wages wages ar aree recover recoverabl ablee from pe perso rsonal nal in injur juries ies  b. Loss of conso consortium rtium recover recoverable able for for pers personal onal in injury jury in produc products ts liab liabilit ility y cases

2.

Economic Loss without Personal Injury or Property damage: a. An act action ion doe doess not li liee when a p prod roduct uct sim simply ply did n not ot perform perform as as expected expected..  b. Product Product liabilit liability y laws were dev develop eloped ed largel largely y to provi provide de compensati compensation on to P who suffered suffered  personal injury or property damage,

Statute of limitation in MS is 3 years.







P can recover for personal injuries (pain and suffering, medical expenses, disability, lost wages, ect.) and traumatic property damage (under §402) *if economic loss is a result of personal injury , then recoverable P CANNOT recover for pure pecuniary losses w/out personal injury In cases where product itself is destroyed due to defect (e.g., burns up, etc.), there is split of authority over whether P can recover value of product.

F. Miss. Miss. Code Ann. Ann. § 11-1-63 11-1-63 Produ Products cts Liabilit Liability y Suits Subject to section 11-1-63 In any action for damage caused by product (personal injury or traumatic damage) except commercial commercial products, the manufacturer manufacturer or the seller is not liable if the P doesn’t prove on the preponderance of the evidence

1. Applies Applies to “any action for for damages damages caused caused by a product” product” no matter matter what what name name you give action (no recovery for damage to product itself)  b. Manufac Manufacture ture is is liable liable if if P proves by Prepondera Preponderance nce of Evidence that at time product left control of manufacturer: (i) 1 – Deviated Deviated in material material way way from the manufacture manufacturer’s r’s specs (mismanufacture), or  2 – Failed to contain adequate warnings/instructions, or  3 – Designed in defective manner, or  4 – Breached an express warranty, AND (ii) Defective Defective condition rendered rendered the product p roduct unreasonably unreasonably dangerous dangerous to the consumer AND (iii)Unreasonably dangerous condition proximately caused injury c. Product not defective defective if harm harm caused caused by by inherent inherent character characteristic istic of   product d. In ANY action alleging that a product is defective, the manufacturer  will NOT be liable if the P assumed the risk  e. Inadequate Warnings ‒ manufacturer not liable if P does not prove   by POE that manufacturer knew or should have known about the danger that caused the injury 25

 

(i) An adequate adequate warning warning is one that a RPP RPP in similar similar circumst circumstances ances would have provided. (ii) Manufacturer not liable if danger is open and obvious f. Design Defects ‒ manufacturer not liable if P does not prove by  POE that at time product left manufacturer: (i (i)) Manu Manufa fact ctur urer  er knew or should have known about danger that caused injury AND (ii) There existed existed a feasible alternative alternative design for product g. A manufactur manufacturer er who who is found liable for defecti defective ve product product shall shall indemnify a seller who is not at fault….but this is obsolete because statute also provides that sellers who are not at fault are NOT liable!! -this is the minority view though..…402A holds sellers liable

h. (h) In any action alleging that a product is defective  pursuant to paragraph (a) of this section, the seller of a  product other than the manufacturer shall not be liable unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or  labeling of the product that caused the harm for which recovery of damages is sought; or the seller altered or  modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller had actual or  constructive knowledge of the defective condition of the  product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a  product. i.

This section section does not not elimi eliminate nate any any commo common n law defenses defenses

Assumption of risk will be a complete defense. The statute doesn’t say anything expressly about contributory negligence. Contributory negligence remains a defense. The statute doesn’t say anything about what the test is about design defects. With regards to a warning defect, it says the test for a warning defect is a negligence standard.

Preemption:

NUISANCE Literal meaning: “harm,” “annoyance,” or “inconvenience.” 26

 

It is a king of interest invaded by the D. It is a field of liability not a particular tort. A. Public Nuisance – A substantial and unreasonable interference with a right common to the general public (health, safety, or welfare of public) 1. Unreasonable Unreasonable means means “more “more than than the public public should should have have to put put up with” with” 2.  Factors (most states have statutes enumerating specific public nuisances) a. Does the the conduct substantiall substantially y interfere interfere with with the public health, safety, safety, or  welfare?  b.  Is the conduct prohibited by statute, ordinance, or regulation ? c. Is the conduct of a continuing continuing nature or has it produced produced a permanent permanent or long long lasting detrimental effect on a public right (to the actor’s knowledge)? 3.  Recovery for Public Nuisance – In order for a private person to recover   personal damages or get injunction for a public nuisance, the person must show they suffered harm of a different KIND from that suffered by the general  public while exercising the right common to the public that was interfered with *harm must be different in kind –not necessarily degree 4. Remedy Remedy is always always an an injuncti injunction on if broug brought ht by the public public 5. A private citizen bringing a public nuisance suit must show that they suffered damages difference in kind from the general public. Ex: fisherman and clam diggers could recover during oil spill. B. Private Nuisance – An unreasonable and substantial interference with the use and enjoyment of a property interest in land *does NOT require a physical invasion (unlike trespass). The Restatement [Restatement (Second) of Torts, § 821D] defines a private nuisance as "a nontrespassory invasion of  another's interest in the private use and enjoyment of land 1.  Interest Protected? – Right of individual to the use and enjoyment of their land (distinguish trespass where interest is exclusive possession) The right to not have the use or enjoyment of their land substantially and/or unreasonable infringed.   infringed. 2. Who can bring the action? – Restricted to contemporaneous neighbors  j. Private Private nuis nuisance ance acti action on cannot cannot be brou brought ght by by purchase purchasess or real real  property against the seller…caveat emptor applies (should have inspected) 3.  Basis of Liability – A

private nuisance action must have a BASIS of liability *distinguish trespass which must be intentional….no “negligent trespass” Philadelphia Electric Company v. Hercules, Inc. The Property in question is the CHESTER SITE It was formerly owned by Pennsylvania Industrial Chemical Corporation (PICCO). It operated a hydrocarbon resin manufacturing plant. PICCO sold to Gould in 1971. Gould sold to PECO in 1974. PECO had owned the adjoining site and had full opportunity to inspect and investigate the condition of the property. Hercules became the successor of PICCO, assuming all debts, obligations and liabilities. 27

 

This action is brought against Hercules by PECO for damages and injunction requiring D to abate any further pollution. In 1880 DER discovered that resinous materials similar to those once produced  by PICCO were seeping into the Delaware River and directed PECO to develop and act on a plan to eliminate the situation. Whether the condition created by Hercules on the Chester site amounted to nuisance, and whether Hercules remains liable for the nuisance even after  vacating the land. To whom Hercules may be liable? Whether the purchaser of a real property can recover from the seller on a  private nuisance theory for conditions existing on the very land transferred, and thereby to circumvent limitations on vendor liability inherent in the rule of  caveat emptor. Rule of Law: A subsequent bona fide purchaser of land cannot claim private nuisance against a previous owner for damage done to the land.

A Plaintiff a tort action for public nuisance against a Defendant Defenda ntcannot unless claim the Plaintiff can claim parti particular cular damages suffered due to an interference with a public right.  The Restatement [Restatement (Second) of Torts, § 821D] defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." For this case, the court assumes that Defendant is liable for a private nuisance, with the crucial question being to whom they are liable.  To recover on a private nuisance theory, plaintiff must show there was a breach of duty. In this case, the duty Defendant owed was to neighbors, not the Plaintiff purchaser. To allow Plaintiff to recover on a private nuisance theory would circumvent the rule of  caveat emptor.

 Neighbors unlike purchasers of land upon which nuisance exists, have no opportunity to protect themselves through inspection and negotiation. Rest. Section 821C(2): In order to recover damages in an individual action for a  public nuisance, one must have suffered harm of a kind different from that suffered 28

 

 by other members of the public exercising the right common to the general public that was the subject of interference.

 The Restatement [Restatement (Second) of Torts, § 821B(1)] defines a public nuisance as "an unreasonable interference with a right common to the general public." A public nuisance is a criminal offense, consisting of an interference with the rights of the community at large. However, courts have allowed tort actions for a public nuisance when the plaintiff suffers a particular damage. Plaintiff argues that the expense it incurred in cleaning up the pollutants is a particular damage. However, the harm common to the general public in this case was the public right to clean water.  Therefore, Plaintiff lacks standing to claim indemnity or injunctive relief  for a public nuisance.

Morgan v. High Penn Oil-Important An intentional private nuisance occurs when a person either acts for the purpose of unreasonably interfering with another’s enjoyment of their land or knows that such interference is resulting from his conduct. A nuisance in fact may be created or maintained without negligence. Intentional:   A person may be subject to liability for an intentional invasion of one’s use and enjoyment of their land if his conduct is unreasonable under the circumstances.  It occurs when the person knows that the nuisance is resulting from his conduct o Regardless of the care and skill exercised to prevent the injury. Unintentional: A person may be liable for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous.

Carpenter v. The Double R Cattle Company, Inc. Synopsis of Rule of Law. Idaho law does not follow subsection b of the Restatement allowing for the payment of damages when the gravity of the harm is outweighed by the utility of the conduct, yet the harm is serious and the payment is feasible without forcing discontinuation of the business. The jury and trial court made findings, concluding that the feedlot did not constitute a nuisance. o



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• • •





The Court of Appeals reversed, based on a new subsection of the Restatement [Restatement (Second) of Torts, Section 826(b)] allowing for a nuisance even when the gravity of harm is outweighed by the utility of the conduct, so long as the harm is serious and the payment of damages is feasible, without forcing the business to discontinue. Issue. Did the trial court err by not giving a jury instruction based on the new subsection of the Restatement? Held. No. Judgment of the District Court is affirmed. The new subsection of the Restatement does not represent the law in Idaho. The Appellate Court's decision was based on language in our decision in Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235 (1960). However, this language was clearly dictum. Idaho's economy depends on the  benefits of agriculture, lumber, mining, and industrial development. To do away with the utility of conduct and other factors would place an unreasonable burden on these industries.



Boomer v. Atlantic Cement Co., Inc. Synopsis of Rule of Law. This court balances the equities between the two parties, refusing to close down a large cement plant even though it creates a nuisance, but allowing neighbors to recover present and future damages created by the nuisance.

Facts. Defendant operated a large cement plant. Plaintiffs brought an action for an injunction and damages, alleging injury to their property from dirt, smoke, and vibrations created by the plant. At trial a nuisance was found, temporary damages were allowed, but an injunction was denied. Issue. Was the trial court correct in denying Plaintiffs an injunction when Defendant's activities are found to create a nuisance, but the value of Defendant's operation exceeds the nuisance created? One alternative would be to issue an injunction, but postpone it until a future date, allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. However, the rate of research is beyond the control of the Defendant and a court would be hard pressed based on equitable principles to close this plant based if it is unable to develop such technology.

Spur Industries, Inc. v. Del E. Webb Development Co.

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a. Negligence Negligence – D failed failed to exercise exercise reasonabl reasonablee care to avoid the interfere interference nce  b. Strict Liability Liability – The activity activity poses extreme extreme danger to P’s use and enjoyment of his property.….abnormally dangerous activities c. Intentio Intentional nal – D’s D’s condu conduct ct is intenti intentional onal if: o D meant to invade the protected interest, purpose interest, purpose (rare) o D knew it was substantially certain that the protected interest would be invaded (knew of probability) o Does NOT matter if D exercised all possible care if intentional! d. *Must ALWAYS be some basis for liability….nuisance action does not lie if  no basis even if conduct substantial and unreasonable interference 4.  Balancing Test – “Balancing the Equities” 1. Weighs gravity of harm v. utility of D’s conduct for competing uses 2. Locality of the conduct is important factor  3. Character and extent of harm considered (ex-severe, physical harm bad) 5. Nuisance “per se” se” = nuisance nuisance at all all times times regardless regardless of location location  Nuisance “per accidens” = in fact; depends on circumstances 6. Value Value of the the D’s D’s activit activityy to the the commu community nity a. Majorit Majority/Re y/Restat stateme ement nt – allows allows a findin finding g of a nuisa nuisance nce even when the utility outweighs the harm if: Harm is serious AND o o Payment of damages is feasible w/out shutting down business  b. Minority Minority view view – NO nuisance nuisance found if utility utility outweig outweighs hs harm harm 7.  Hypersensitivity – NOT allowed; objective measure for harm suffered suffered o (already know this but review) 8.  Interference with support of Land – strict liability if land subsides in its natural condition….negligent standard if subsides b/c of artificial condition 9.  Zoning – If an area is zoned for an activity then conducting that activity cannot  be a nuisance solely b/c of its location (b/c deemed “suitable”) -but still may be a nuisance if operated in an unreasonable manner  10. Coming to the Nuisance – Majority rule ‒ P is not barred from recovery for    public or private nuisance simply b/c he “comes to the nuisance” - only a factor to consider but may heavily influence outcome - minority says that coming to nuisance does bar recovery *Right to Farm Laws – codify coming to nuisance claims (all 50 states) MS – if Ag. Op. has operated for at least 1 yr. and adheres to regulations and laws then “right to farm” is a complete defense to P coming to nuisance 11. Note: a person can obtain the right to pollute pollute by prescription prescription (10 yrs. in MS) 12. Contributory Negligence – IS a defense if basis of liability is negligence, but  NOT if basis is intentional 13. Damag Damages es a. Injuncti Injunction on – court court order order commandi commanding ng or prevent preventing ing an action action Old rule – If P could show that D’s conduct caused a private nuisance o and substantial damage, an injunction was granted.

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o

o

Boomer Rule – An injunction will not be granted if the economic  benefit of the business outweighs the damage (will award permanent $$ damages)..…conditions injunction upon payment of damages Modern trend – “balancing the equities” – most courts today do not take a categorical position on whether to grant an injunction, instead, they look to an equitable solution

 b  b.. M oney ey Damag am–ages  Normal Ifescourt determines P has suffered substantial damages, will o on award damages for decreased enjoyment of property up to present time Damage is ‘substantial’ if: 1. Offensive to a person of ordinary sensibilities 2. Any property damage is substantial Permanent damages – Damage for decreased value of property, both o  present and future, when injunction is not awarded b/c utility outweighs harm (Boomer Rule) i. Essentially gives the D a right of inverse condemnation in  property by creating an easement – paying “after-the-fact” Boomerr cement cement company company has has the right right to take take private private i. The Boome  property for their use (eminent (eminent domain). The taking must be for    public use? Toyota? Inverse condemnation is putting down the plant first, and then getting the court to allow them to buy the property.

Right to Farm Statute:p.847 Interference with the support of the land: p862 You can acquire the right to pollute property through adverse possession. Feedlot case. DEFAMATION—two torts Libel (written) and Slander (oral)

A. 2 Part Test 1.  Interest Protected ? Right of individual not to have their reputation reputation damaged by false publications or false statements. a. No caus causee of act action ion if if tell telling ing trut truth h 2.  Basis of Liability? a. Private Private Plainti Plaintiffs ffs ‒ int intenti entional onal or neglige negligent nt conduct conduct   b. Public Plaintiffs‒ “malicious” conduct defined by Supreme Court  Prima Facie Case (what P must prove) – Publication of false and defamatory statements of fact that damaged his reputation….made people think less of individual Test: Whether publication is defamatory “when read read and construed in the se sense nse in which to whom it was addressed would ordinarily understand it.” Question of FACT: • Unambiguous/1 Meaning = Court decides in SJ if reasonable minds cannot differ  •

Ambiguous/ 2 or more Meanings = Jury decides if one could be defamatory 32

 

*It is enough if the communication could be defamatory to SOME people (not necessarily right-minded people) Libel per se—any publication which exposes a person to distrust, hatred, contempt, ridicule, obloguy. It can mean that the cause of action the P can bring does not require  proving special damages. Truth is an absolute defense to defamation action. Statements must be “substantially true.” Jurisdictions are split on who has the burden of proof to prove the truth of  statements if private plaintiff; public plaintiffs always have burden of proving falsity.

Character of the P is NOT relevant. Truth of other misconduct does not matter. Must prove truth of that particular statement alleged. OK if minor falsities in D’s statement.

Burden of proof:

1. At common common Burden law, law, there was was pre on ofprove falsity falsity regarding regarding the the defamatory defamadefense. tory statements. was onaDpresumpti tosumption plead and truth as an affirmative Jurisdictions are now split on whether private P has burden of proving falsity. 2. U.S. Supreme Court put burden on P to prove falsity of the statements in action against a media defendant for speech of public concern. 3. In Mississippi, burden is on P to prove falsity of the statements regardless 4. The truth truth can be pleaded pleaded as an an affirmative affirmative defense defense and then the P. P. would have have the  burden of proof to show the claim was true/false? 5. Somet Sometimes imes the P. can have the the burden of of proof to prove that the claim claim was was false false (what is the situation when this happen?) Who can be defamed? (note 2 pg 878)  Any living person (defamation actions are NOT

 protected by “survival” statutes)  Defamed Groups: a) Very Large Large – NO action action for for any member member (ex(ex- “all lawyers”) lawyers”)  b) Small – ANY ANY member member has action so long as ALL were were referred referred to (“t (“the he jury”) *courts split on whether individual in small group may bring action when not all were referred to (ex- “some of the call girls are whores” and 10 call girls) Corporation – Cannot bring action in personal sense of   reputation but CAN bring action if publication damages its business character. For  instance defamation action can be brought for honesty, credit efficiency or other   business or moral character. Governmental institution should not enjoy a right to sue  in libel. They should be open to uninhibited public criticism.

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Colloquium: Defamatory statement does not have to indicate P by name to be actionable. All that is required is that statement be phrased in such a way that people could reasonably infer who was being defamed (e.g., language could refer to P by title, etc.). NOTE: Defamatory statement must be a false statement statement of fact, not of opinion. Restatement of Tort Section 564A: One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of I, if, but only if: a. The group group or class class is is so small small that that the matter matter can reasonably reasonably be under stood to refer to the member, or   b. The circumsta circumstances nces of publication publication reasonably reasonably give rise rise to the conclusion conclusion that that there is particular reference to the member. The numerical approach to group libel: The group generally successful in pursuing group libel actions number 25 or less. Libel vs. Slander: The difference is that in slander (NOT slander per se) P has to prove the damage done to his reputation caused him to sustain special damages — pecuniary damages….. “Something of monetary value” •

Libel per se – 2 Meanings 1) printed or written comment that is without question defamatory; reasonable minds can’t differ. If not, goes to jury. OR  2) P does NOT have to prove special damages *hence….ALL libel is libel “per se”!!! No need to differentiate. Liber per quod: Statement not defamatory on its face and requiring extrinsic facts in order to appreciate its defamatory implication Plaintiff must allege and proof the extrinsic facts in order to have a cause of  action. Restatement of Tort Section 568: Libel: consists of publication of defamatory matter by written or printed words or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words. Slander: consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in Subsection (1).



Slander per se –a cause that is actionable w/o proof of special damages: 4 Types 1. Imputations of Major Crime – crime of “moral turpitude” 2. Loathsome Disease – little recognized. Advancement of science and the current social perception about such slander has made it not sufficient to be actionable without proof of special damage. 3. Business, Trade, Profession – saying person is unfit for business

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4. Serious Sexual Misconduct – applicable to women Elements: Libel AND Slander per se 1. Publication – transmission to a 3 rd party 2. False statement statement of of fact (not opinion) – NOT substantially substantially true 3. Defama Defamator tory y – damage damagess P P’s ’s reput reputatio ation n 4. About About P – explicit explicitly ly or colloqui colloquium/ um/innu innuendo endo (reas (reasonab onably ly inferred)

 spoken defamation which does NOT fall into previous 4 categories Plain Slander –  spoken Elements: * P must prove special damages!! Publication—a communication of the defamatory material to another person False statement of fact (not opinion) Defamatory About P Special Damages – pecuniary loss….”something of monetary value” If they can prove special damages, they can then recover for those and also for other things such as damages to reputation or emotional distress. a. The specia speciall damages damages must must have have been been the the natural, natural, •

1. 2. 3. 4. 5.

6.

immediate, and legal consequence of the words.  

7. What What cons constit titute ute Spec Special ial Dam Damage ages? s? a. Whe Wheneve neverr a person person is is prevent prevented ed by the the slande slanderr from from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient i. Los Losss of marria marriage, ge, loss loss of hospit hospitable able grat gratuito uitous us entertainment, preventing a servant or bailiff  from getting a place, the loss of customers by a tradesman NOTE: P’s recovery not limited to special damages in slander. Additional

damages may be awarded for mental distress, wounded feelings and humiliation. *So….really there are only 2 causes of action for defamation: 1. Libel/Slander per se – no specials damages necessary 2. Slander – special damages must be proven  Broadcast defamation – libel or slander? a. Cour Courts ts have have tr trea eate ted d as as libel b/c of potential to reach so many people  b. Many states states have have statutes statutes that make make this sort of defamation defamation slander  NOTE: In determining whether particular communication is libel or slander, courts will ask how many people did it reach? Libel will reach more people. Publication —communication of defamatory statement to a 3rd Party i. may either be done intentionally OR negligently

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ii. “providing means for which comment was published” iii. respondeat superior applies for employers

Publication: a word of art in defamation cases. It does not mean printing, writing or even publicity. • •



It means communication of the defamatory words to someone other than the person defamed. It is not enough that the words are spoken to the plaintiff himself even in the presence of others if  no one else overhears them. Communication to a 3rd party is considered publication if it is done intentionally or by a negligent act. Restatement of Tort 577. o  No publication when words are spoken directly to a plaintif plaintifff with no reason to suppose that anyone can overhear, but they are in fact overheard by a concealed listener. There is publication when Defendant speaks so loud that the Defendant can expect that o someone may overhear. There is no publication when a defendant sent defamatory matter in a sealed letter and it o is unexpectedly opened and read by a third person o

Repetition of defamatory statements: A party need NOT create publication Party who repeats defamatory statements is also liable for defamation (if reasonably anticipated) even if (1) they credit the original source OR (2) they disclaim the statements by saying they do not believe them to be true. Internet Privilege: Internet service providers are protected by Congressional Act so long as they did not provide the defamatory information (“create it”)……. b/c courts want to  promote commerce Statute of Limitations with regard to defamation (1 year including MS): Single publication rule — cause of action accrues at the time of original  publication from which the S.O.L. begins to run (generally one year) i. Discovery rule applies – when P knew or could have discovered with reasonable care (MS has this rule)

ii. Common Law allowed cause of action to accrue with every sale or  delivery of publication….made S.O.L. obsolete Miss. retraction statute: If P is going to sue a newspaper or TV station then P must give them at least a 10 day notice before filing the lawsuit to retract the  publication; if D makes a full and fair retraction, P can still bring suit after 10 days  but gives D opportunity to demonstrate good faith; i.e. cannot get punitive damages (P can still get special and general damages) Primary vs. Secondary Secondary Publisher Primary publisher: original publisher of defamatory statement OR any party repeating the publication; primary publishers ARE liable for libel and slander 

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Secondary publisher: vendor or distributor of a newspaper, magazine, or book, that contain defamatory statements; secondary publishers are NOT liable (exception: can be liable under negligence framework in some situations)

 NOTE: At common law, libel and slander were strict liability causes of action b/c did not have to prove fault, i.e. didn’t have to prove publisher knew about the defamatory statements (no negligence or intent required). So D’s had to to raise affirmative defenses/privileges. U.S. Supreme Court has changed this. Privileges The CL developed a number of defenses in order to protect the interest of free speech and political and  public debate. The defense of Fair Comment has not been constitution constitutionalized. alized. o It could not be judiciall judicially y reviewed Other speech attracted a qualified or conditional privilege o This speech was not actionable although defamatory, if it was communicated by the  publisher to the recipient where both parties had a reciprocal duty and interest to communicate and receive it. Example Letter of Reference  If the purpose of the communication is outside the purpose of the privilege, the defense is lost.  If the communication was transmitted to a person who has no duty or interest of  receiving it, there is no privilege. •



Privileges (affirmative defenses for defamation suits) 2 Types: 1.

Absolute Pr Privilege – complete immunity from defamation action i. Does NOT matter what the intent of the D was ii. Social interest outweighs the private interest – to not allow would diminish people’s ability to do their jobs and subject to lawsuits iii. 3 Types: 1) Judicial – immune so long as remotely relevant to case 2) Legislative – anything conducted on the “floor” immune 3) Executive: i. Federal – immune if in scope of employment  because of FTCA (Fed torts

claims) ii. State – high rank officials are immune; low?  NOTE: Absolute privileges CANNOT be lost by abuse . 2. Conditional or Qualified privilege — CAN be lost by abuse

*1st – NO IMMUNITY if D knows the publication is false! This privilege only applies if the D believed the statement was true. 2 Types if P did not know of falsity of statement: Whether the D. was operating under a qualified privilege is a question of law for  the judge. 1. D was acting in the discharge of a public or private duty 2. D had a good reason for publishing defamatory information i. ex-reference letter or inquiry by employer; not casual conversation ii. Volunteering statements is not as good as being asked about it 37

 

Test: Would a RPP have said the same thing? Yes = immunity No = abuse  *If D did NOT have a good reason to publish defamation then has abused their privilege and NO immunity applies.

The term used is ‘malice.’ That the person said it maliciously. requires P to Abuse: affirmative defense will be lost upon abuse which requires  prove that the D abused the privilege; test for abuse: whether a reasonable  person would have acted in same manner  Weems: “Qualified privilege exists when the communicating party and the recipient have a mutual interest in the subject matter or some duty” ex) fair reporting, fair comment, privilege to provide means of pub. Procedure: 1. JUDGE decides if privileged immunity exists – B.O.P. on ∆ 2. If qualified immunity found, P must prove the D lost the  privilege by abusing it…..comment made with malice i. Common Law Malice – reckless disregard, knowledge it was false (always malice), OR negligent RPP standard above *Supreme Court has changed this for some P’s *The SC has now abolished common law strict liability for defamation. 1. Public Public plaintiffs plaintiffs‒ must prove actual malice malice as an element element so… so… * qualified privileges are no longer existent!!! 2. Private Private plainti plaintiffs ffs‒ now requir required ed to prove prove some fault fault (usua (usually lly negligence) as an element anyways so….. * qualified privileges can now only be overcome by proving knowledge of falsity or reckless disregard *MS – P must prove publication made with “ill will or malice” (not Times malice) to overcome - Weems hates this rule so use previous one Conditional Condition al or Qualified Privilege Sindorf v. Jacron Sales Co. Whether the D was operating under qualified privilege is a question of law for the judge. TC says yes. There is qualified privilege. Brief Fact Summary. Sindorf (Plaintiff) brought suit against his former employer, Defendant, for defamation, after he learned that Defendant had made derogatory remarks about him to his new employer. •

Synopsis of Rule of Law. While a conditional privilege may exist, when two parties are discussing another party they have in common, and there is truth to the discussion, the •

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question of whether the communication was made out of malice is still a proper question for a jury. Facts. Plaintiff, Defendant's former employee, resigned after a dispute as to his sales  practice. After Plaintiff sought employment with a competitor, Defendant's Vice President called Plaintiff's new employer and made derogatory insinuations insinuations regarding Plaintiff's honesty. Plaintiff brought suit for defamation. The trial court held that the conversation between Plaintiff's current and former employers was privileged, and directed verdict for Defendant. Plaintiff appealed. Issue.  This case considers whether a conditiona conditionall privilege exists in defamation suits where the Plaintiff is a former employee of the Defendant. Held. Reversed. The court reversed the judgment, holding that a privilege may exist where the truth is in question. The question of malice must be for a jury, and Plaintiff may be afforded the opportunity to bring suit. Discussion. When considering whether a communication was made with malice, the question will be presented to a jury for determination. •



There is no qualified privilege privilege where the speaker knows it is untrue. A speaker is deemed to have a qualified privilege privilege whenever he has a good reason for making that defamatory comment. Two questions under the CL: 1. Wa Wass D enti entitle tled d to qual qualifi ified ed priv privile ilege? ge? 2. Wa Wass the the pri privi vile lege ge abu abuse sed? d? II. What must be shown that the D abused it? a.  b.

Some states states requir requires es that the P shows shows that that the D has has acted acted in reckless reckless disre disregard gard Some (Proba (Probably bly majorit majority) y) says that it it was a matte matterr of reasona reasonable ble conduct conduct.. P must show that a RPR would not have done what the D did.

 New York Times v. Sullivan) Constitutional Constitutio nal Privilege ( New 1.

Situation at common law prior to New York Times case: no distinction made between public and private plaintiffs

2.  New York Times case:

SC created a new qualified privilege with regard to publications made about a public official or figure in regards to their job. Codified common law fair comment privilege…..now called “constitutional privilege” *Constitutional privilege can be lost by abuse (not an absolute privilege). When a person is writing or speaking about a public office about the official duties of the official, the writer or the speaker enjoys a qualified privilege. To prove abuse of constitutional privilege, P must prove Actual Malice (sometimes referred to as Times Malice): Weems says for the purpose of this class we must describe is a N.F./R.D. He doesn’t want us to use the term actual malice or times malice. P. must prove one of two things: 1. Knowledge of Falsity – always malice OR  2. Reckless Disregard -- for whether publication was true or not  fact finder ; must be sufficient evidence that: Subjective Test – Issue for  fact

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i. false publication was made with a high degree of awareness of  probablee falsity OR  probabl ii. If ∆ IN FACT entertained serious doubts as to the truth of his  publication - not probably entertained….in fact DID entertain - merely not verifying facts or investigating is NOT enough *this “Times Malice” is constitutionally required …Weems …Weems doesn’t want us to use the term ‘malice’ or ‘Times malice’ at all. 3.

SC created constitutional privilege to give media and others publishing about public officials/figures “breathing room” so as to prevent “selfcensorship ” (First Amendment concerns) -“1A requires that some falsehood be protected in order to protect speech that matters”......”some degree of abuse is inseparable to protect press”

Two fundamental questions that had to be decided after the case was decided : Who does this new privilege apply to? I. II. What does reckless disregard mean? mean? It means there was was a high probability of  falsity and they ignored it.



This conditional privilege was also extended beyond 1) public officials and 2) public figures to apply to 3) any matter of legitimate public interest  see n. 5 @ 915 Actual Malice, Burdens of Proof, and the Press St. Amant v. Thompson Reckless disregard requires a showing that: the D publication was made with “high degree of awareness of probable falsity There must be sufficient evidence to permit the conclusion that the D in fact entertained entertaine d serious doubts as to the truth of his publicatio publication. n. If a P is required to prove k N R D then their task is not impossible but extremely difficult to do. 4.

• •

The Supreme Court accepts the Louisiana courts determinations determinations that the material published was false and that the Plaintiff was a public official for the purpose of this case. Therefore, the actual malice standard is applicable. It is clear that the Defendant had no personal knowledge of the Plaintiff's activities activities,, but rather  relied only on the union member's affidavit. He failed to verify the information, information, mistakenly believing that he had no responsibility responsibility for the broadcast  because he was quoting someone else's words. In order to meet the actual malice standard, the Defendant must have a high degree of awareness of the statements probable falsity. This standard is not measured by whether a reasonably prudent man would have published the material or  would have investigated before publishing. Rather, there must be sufficient evidence to show that the Defendant entertained serious doubts as to the truth of his publication. A defendant cannot insure a favorable verdict by simply stating that he published with a belief that the statement was true. The jury must instead determine if the publication was made in good faith. However, in this case the evidence against the Defendant was insufficient to meet the reckless disregard requirement for actual malice. In class 3-9-12

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Harte-Hanks Communications v. Connaughton Gertz v. Robert Welch Does the constitution of the US require that he proves knowledge of falsity or reckless disregard on the part of the publisher? Two competing interests: 1. The public has a right to know about public officials and public office. 2. Right of a person not to have his or her reputation damaged by false publication. Qns: How to balance the two. Ct says with regards to public people it got it right. Because public officials  by voluntarily getting involved in public offices, they give up some of their protection The most important question in any libel or slander action: Was the P a private or public person? If the answer is Public official, then that person is required to prove that the D published with KF RD If the person is a private, then it depends on the law of the particular state. Usually negligent standard applies.

5.

Private individuals ‒ Gertz ; did NOT extend constitutional privilege 1. Why? Private plaintiffs have not “voluntarily exposed” themselves to defamatory falsehood like public plaintiffs

have

2. Knowledge of falsity or reckless disregard is not required  3. States must require some type of fault (no longer S.L.) for  defamation of private individuals ‒ Constitutionally required  i. Majority – require negligence (MS as well) - “RPP would not have published UTC” ii. Minority – knowledge of falsity or reckless disregard

*So….common law strict liability is NO longer the case as P must prove some fault in ALL libel and slander actions!!!  6.

Public/Private Dichotomy (from Gertz case) - Key question: Whether or 

not the person is a public or private person? This is a question of LAW. a. If P to be held a private person, then must prove some fault    b. If P to be held a public person, then must prove knowledge of falsity or reckless disregard  The private P. has to to prove some kind of fault. The 1st A. won’t permit strict liability. The kind of fault that they have to prove is left left up to the states. The Supreme Court also said we are not going to have anymore  presumed damages.  damages.  The jury will decide if the P. suffered actual damages due to the defamatory statement.  statement.   Public or Private Figure? Question of LAW for the JUDGE The way it is approached is this:

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Public official – holds or is candidate for some public office, affects public  policy  b. Public Figure: 2 Types i. Universal public figure: extremely well known or famous person; involuntary public figure; not many of these people (ex-Falwell) ii. Vortex/limited public figures: (drawn into the vortex of the public issue) voluntarily involved in a public controversy (matter of  legitimate public concern), becomes public figure only w/regard to the particular issue. 2 Part Test: 2 Inquires 1. Is there an existing public controversy? -mere public interest is not enough 2. Did the P voluntarily get involved in the controversy? (in the vast majority of situation, the getting involved must be voluntary) iii. Court will will consider consider the the following following to determine determine if public figure: figure: - voluntariness of publicity - “public access” of the P - P’s assumption of risk  a.

Everybody else is considered Private persons. If you become a public figure, the court is basically saying that you  probably won’t win a libel suit.

Damages: (See Notes)  At common law, P didn’t have to prove actual damage to Presumed damages –  At reputation, jury could award presumed  damages to reputation and could also recover for emotional distress, pain and suffering, punitive damages, etc. -Rule now changed depending on who P is and what publication is about...

Malice: Ill will or hatred. The kind of conduct that will lose qualified privilege. At CL, if the D had qualified privilege then the P had to prove malice. WE NEVER TALKED ABOUT ANY OF THIS ACTUAL MALICE BIT! 1. Public Plaintiffs- Must prove actual malice to recover damages AT ALL….actual malice is element to lawsuit i. If actual malice proven then can recover punitive or presumed 2. Private Plaintiffs – Legitimate Public Concern (cannot recover presumed or punitive damages unless prove knowledge of falsity or reckless disregard—this disregard—this is the Gertz case. relating to publication i. P must prove actual malice in order to recover  punitive  punitive or   presumed damages….if not proven; only actual damages allowed - damage to reputation (proven, not presumed) - actual damage: emotional distress, humiliation,  pain/suffering, ect.

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3. Private Plaintiffs – NO Legitimate Public Interest (can recover presumed damages—make sure of this!!) relating to publication. But if all they prove is negligence they can’t recover. i. Punitive or presumed damages ARE recoverable without proving actual malice….but still must prove some fault  ii. Also can recover actual damages iii. Note: P must prove more than negligence though for punitive Procedure: A reviewing court (trial or appellate) must make an independent review of the evidence when malice is proved. The question of whether  actual malice is proven with sufficient evidence is a matter of LAW for the JUDGE to conduct an independent de novo review of. (not for negligence) Gertz involved Private person and matter of legitimate public concern Dun involved private person and Not matter of legitimate public concern  

Burden of proof of falsity a. Common Common Law Law – presumed presumed falsi falsity ty and ∆ had B.O. B.O.P. P. for provi proving ng truth truth  b. Modern – BOTH private and public plaintiffs have B.O.P. of proving falsity

 by clear and convincing evidence IF the publication involves a matter of  legitimate or general public interest (the private P. is going to have to prove that it was false) (I don’t think what this outline says is right!) the standard is a preponderance of the evidence. c. If you are suing suing someone someone for a matter matter of legiti legitimate mate public public interest, interest, whether  or not you are a private or public person, you must prove that the matter was false. d. If publication is NOT a matter of legitimate public interest then regardless of whether plaintiff is public or private the B.O.P. is up to the states *MS requires EVERY plaintiff to prove falsity!!! Common Law Qualified Privilege For Public P, if he proves KF RD For Private P, there still can be a place for CL qualified privilege. P has to prove negligence in order to recover anything from the D. If the D was in a situation that under  CL he would have had qualified privilege, most writers think the Court will require the P to  prove KF RD A reporter’s privilege: Ordinarily speaking a person who repeats a defamatory statement is liable for that. If a reporter covers a public meeting, he or she has privilege to the publication of the things said there. As long as the report is accurate there is no liability.

Retraction Statute: MS has one.

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At least 10 days prior to filing a liable or slander action, the person who is going to sue the  publisher is required to give them notice that he or she is going to sue or to ask them to retract. The point is for them to give opportunity for the publisher to give an apology or retract. Purpose is to show good faith. It does not mean the P can’t sue. Slander (not per se) requires prove of special damages. Stmt of Fact v. Opinion – difficult to distinguish many times If a reasonable person could conclude that the publication implies an assertion of  fact then an action may be brought. Basically, if it can be  proven then it is not an opinion…… “1A protects ideas not false statements of fact.” You leave it up to the  jury to decide whether it was an opinion or not—see pg. 956 highlighting.

Back to Privileges for a moment: if someone calls me and asks me about what I think of a  public official. Is there there any privilege? Will it do any good to assert assert this privilege? No. The public figure will have to prove knowledge of falsity or reckless disregard. So it won’t do any good to raise any qualified or CL privilege. With regard to public figures, the CL privileges don’t apply anymore. What if they call me and ask me about a private person? Unlike in the other situation, the  person is going to have to prove that I was negligent. That is part of their prima facie case. Then I raise as part of my defense that I was operating under a CL qualified privilege to discuss the reputation of a person they were thinking about hiring. Will this help help my defense? It depends on the state I’m in. Most states are saying that the P. has to prove negligence, but if I am found to be operating under a CL qualified privilege, the P will have to prove more—knowledge of  falsity or reckless reckless disregard. This is what MS does.*** Overall Framework for Defamation Analysis: Digression (Not (Not notecarded, make chart) 1.

Libel & Slander Per Se –  Private Plaintiff  a. Pl Plai aint ntif ifff must must pr prov ove: e: i. Publication – to a 3 rd party that could be understood by the third party ii. Fals Falsee – not sub subst stant antia iall lly y true true iii. Statement Statement of Fact – or statements statements that that imply imply assertion assertion of of fact iv. Defama Defamator tory y – make people people think think less less of P after after hearin hearing g v. About About P – expli explicitl citly y or collo colloquiu quium/i m/innue nnuendo ndo vi. Fault and Damages Damages – NO Special Damages Damages necessary necessary to recover! recover! b. Fault i. NOT matter of Legitimate Public Interest: P must prove some fault  (Majority require that publication was at least negligent) 1. Damages:  Presumed and punitive damages recoverable‒ don’t  have to prove actual malice! Also recover actual damages

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Privileges: absolute privilege defeats suit; qualified privilege –  to overcome, P must prove knowledge of falsity of reckless disregard (because P has to prove some fault even if there is no  privilege so must have higher standard here) 3. State State vary as as to whethe whetherr P has B.O.P B.O.P.. to prove prove falsit falsity y (MS always puts burden on P)

2.

ii. Matter of Legitimate Public Interest:

1. Burden Burden of proo prooff on P to prove prove falsi falsity ty of stat stateme ements nts 2. Damages: P must prove “actual malice” ( knowledge of falsity or reckless disregard) to recover presumed or punitive damages 3. Even if P cannot prove actual malice, P can still recover  actual  damages in most states if P can prove negligent publication 4. Absolute privilege defeats suit; qualified privilege can be overcome only by proving knowledge of falsity or reckless disregard  2. Libel & Slander Per Se –  Public Plaintiff  a. Public Public offi official cial:: holds holds or or iiss cand candidat idatee ffor or office office  b  b.. Publ Public ic fig figur uree: i. Universal figure:

prominent, well-known; well-known; constitutional privilege applies to any statements about this P ii. Vortex figure: voluntarily involved in a public controversy; constitutional privilege applies only to statements made relative to the subject of the controversy c. Pl Plai aint ntif ifff must must pr prov ove: e: i. Publication – to a 3 rd party that could be understood by the third party ii. Fals Falsee – not sub subst stant antia iall lly y true true iii. Statement Statement of Fact – or statements statements that that imply imply assertion assertion of of fact iv. Defama Defamator tory y – make people people think think less less of P after after hearin hearing g v. About About P – expli explicitl citly y or collo colloquiu quium/i m/innue nnuendo ndo vi. Fault and Damages Damages – NO Special Damages Damages necessary necessary to recover! recover! d. Fault: i. Burden Burden of of proof proof is on on P to to prove prove fals falsity ity ii. Must prove actual malice to recover at all (knowledge of falsity or  reckless disregard)….then, P can recover presumed and punitive damages iii iii.. Absolu Absolute te privile privilege ge defe defeats ats suit suit iv. Qualified privilege do NOT exist if P is public official or figure  because P must prove actual malice in the prima facie case Speech of Private Concern Dun & Bradstreetv. Greenmoss Builders Private person could not recover presumed damages without showing Knowledge of falsity or reckless disregard Constitution does not require a private person to prove KF RD to prove a libel case where the libel was not made by a public media/

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Dun & Bradstreet, Inc. v. Greenmoss G reenmoss Builde Builders, rs, Inc. Brief Fact Summary. Dun & Bradstreet, Inc. (Petitioner) sent a report to five subscribers, regarding the credit rating of Greenmoss Builders, Inc. (Respondent). The report was proven false, and Defendant brought suit for libel, based on the harm it incurred as a result of the erroneous report. Synopsis of Rule of Law. The First Amendment does not protect the speech of a nonmedia party, when its actions create slander and/or libel against another private party. Facts. Petitioner sent a credit report to five subscribers, indicating that Respondent had filed a voluntary  petition for bankruptcy. The report was false, the result of the Petitioner Petitioner's 's use of a 17-year-old high school student to review the bankruptcy proceedings proceedings.. Respondent was actually in good credit standing, but one of  its employees had, indeed, filed bankruptcy. When respondent learned of the error, it called Petitioner, explained the error, and asked for a correction. Petitioner sent out a notice of the mistake, but refused to disclose its subscribers, and Respondent brought suit for liable. Respondent was awarded $50,000.00 in damages, and $300,000.00 in punitive damages. The trial court granted a new trial, but Respondent appealed to the Supreme Court of Vermont, which reinstated the verdict, maintaining that the constitutional requirements for a suit for libel did not apply to a non-media defendant. The Supreme Court of the United States granted certiorari. certiorari. Issue. Whether the first amendment rights of the maker of an expression, concerning public issue, preclude it from being sued for libel, when it is not a media defendant? Held. Affirmed. In reaching its conclusion, the Court focused on content, form, and context, in considering whether the Defendant's speech was protected by

the Firstsubscription Amendment. In thiswas case, thereporting Court found theof Defendant, a  private service, not on anthat issue public concern when it made its report regarding the Plaintiff, and as such, it could not seek protection under the First Amendment. Dissent. Justice Brennan dissented, noting that although this type of speech is not central to the meaning of  the First Amendment, punitive damage awards should be restrained. Discussion. While the First Amendment affords media defendants great protection, when they are reporting on issues of "public concern", non-media defendants cannot use that same protection when their actions cause damages to private parties.

Falsity Philadelphia Newpapers v. Hepps Does the US constitution require a private P to prove that a media publication is false? Majority: Yes, provided the article is one of general public interest. Whether there is a different standard for a media and all else? The Hepps case makes it certain that it applies to media.

Philadelphia Newspapers, Inc. v. Hepps Brief Fact Summary. Hepps (Plaintiff) brought suit against Philadelphia Newspapers, Inc. (Defendant), after it published a series of articles alleging that Plaintiff had links to organized crime, and had used their position to exercise influence over the government. Synopsis of Rule of Law. A private party cannot bring suit against a newspaper for  slander or libel, without bearing the burden of showing falsity and fault, before recovering damages. Facts. Plaintiff was the principal stockhol stockholder der of General Programming, Inc. (GPI), a corporation engaged in franchising convenience stores. Defendant published a series of articles, articles, alleging that Plaintiff had exercised undue influence over the governmental using its ties to organized crime. Plaintiff brought suit  based on slander. At the jury trial of the matter, a verdict was found for f or the Defendant. The Supreme Court of Pennsylvania remanded the case, holding that it was not unconstitutional to hold that the Defendant must  bear the burden of showing the truth of the statements. The Supreme Court granted

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certiorari. Issue. This case considers whether a media defendant must bear the burden of proving the truth of  statements it publishes, when they are attacked as libel by a private Plaintiff. Plaintiff. Held. Reversed. The court held that the Plaintiff must prove the truth or, actually, the falsity of the statements alleged as slanderous, to recover damages. While the Plaintiff is a private figure, the Defendant is protected by its First Amendment freedom of press rights against a suit for slander, Dhen a plaintiff cannot prove that it  published false statements and, thereby showing that it was at fault. Dissent. The dissent held that a private-party plaintiff should not have to bear the burden of showing certain statements to be false, in order to recover damages based in slander. According to Justice Stevens, "deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution." The First Amendment does not require the target of  defamation to prove his assailant was at fault. Discussion. The First Amendment affords a newspaper great leniency in what it  publishes. In this case, the Plaintiff could not prove that the Defendant had knowingly  printed false statements, and thus, the Defendant could not be held liable for slander.

Opinion

Milkovich v. Lorain Journal Co. Brief Fact Summary. Milkovich (Petitioner) brought suit against Lorain Journal Co. (Respondent), (Respondent), when it  published an article, which implied Petitioner had lied under oath in a judicial proceeding. Synopsis of Rule of Law. The First Amendment does not preclude a newspaper from being sued for libel, when a plaintiff can show that statements published were an attack on reputation reputation.. Facts. Milkovich was the wrestling coach at Maple Heights High School in Ohio. During the 1974 season, the team was involved in an altercatio altercation n at a home match, during which several  people were injured. After the altercation, altercation, the Ohio High School Athletic Association (OSHAA) placed the team on probation. Then, several parents and students sued the OSHAA, in the Court of Common Pleas, seeking a restraining order of the probation, probation, on the grounds that due process had not been afforded to the members of the team. The court overturned the conviction and, the next day, Respondent published an article alleging that Petitioner had lied so the probation would be overturned. Petitioner brought suit, alleging defamation. Issue. Whether a newspaper can be held liable for defamation, when it publishes an article about a private figure which, albeit opinion, was designed as a character attack? Held. Reversed. The Court reversed the lower court ruling that the article constituted a constitutionally protected opinion, and held that while the First Amendment does guarantee uninhibited speech, the important social values

underlying .the of Amendment defamation recognize a strong interest in preventing character attacks. Discussion Thelaw First gives great leniency to newspapers and and theirredressing journalists; however, the constitution also recognizes that defamation can exist, when an article is published specifically to attack  another's character. The question is whether or not a reasonable person after reading the article would have concluded that the person had committed perjury or not? The US Constitution does not require any more than that.

Remedies Damages: The prime remedy for defamation is damages. For Libel and Slader per se, it was presumed at CL that there were “general damages,” damages were “at large,” and thus the jury were permitted to estimate the harm to P’s reputation that they thought the defamation has caused, without the need for evidence to support the conclusion. Gertz however, confined damages to “compensation for actual injury” unless P establishes actual malice. To the extent that damages cover pecuniary, or out of pocket loss, an award of money damages is entirely appropriate appropriate as it purports to make the P whole. 47

 

If slander is not actionable per se, then special damages must be proven Actual injury may include “impairment of reputation and standing in the community, personal humiliation, humiliation, and mental anguish and suffering,” so long as there is adequate proof of these matters.

INVASIONS OF PRIVACY – (4 separate causes of action) (for the purposes of this class do not use “invasion of privacy” term. Because there are four separate causes of action)  Note: These causes of actions below are NOT called invasions of privacy! A. Appropriation of Name or Likeness (Appropriation cause of action) Elements: 1. The ∆ used the P’s name or likeness (without II consent) 2. Use of П’s name or likeness was for the ∆’s own purpose or benefit commercially or otherwise - more than mere publication or mentioning 3. P. suffered damages 4. ∆’s use of П’s name or likeness caused the damages Damages: ALL jurisdictions allow damages for any personal injury (Emotion D.) and also damage to a person’s right to publicity—their name or likeness could  be valuable (endorsing products, etc.) i. Minority – view name or likeness as a property right  * to recover for pecuniary loss P. must prove name or likeness had a commercial value ii. Majority – NO proof of commercial value necessary to recover pecuniary damages Restatement 652C:

Privilege under 1st Amendment If D has privilege under 1st amendment, П’s claim will not succeed. Affirmative Defenses: 1. Consent – no liability if consent for appropriation given 2. Legitimate Public Interest  –  – if appropriation is of “legitimate public interest” then protected under the 1A so long as NOT commercial speech i. Speech cannot propose a commercial transaction ii. Does NOT matter if ∆ had a profit motive so long as not commercial speech….this is a question of law for JUDGE Commercial Speech: speech that proposes a commercial transaction It is in the content of the speech not the motivation of the speaker, which determines whether particular speech is commercial. A profit motive does not transform a publication regarding a legitimate matter of public concern into commercial speech.

B. Intrusion upon Solitude or Seclusion – must be intentional; not negligent Elements: 1. Intrusion into a private place, conversation, or matter  48

 

i. NOT public! Ex) photo of P in public park  ii. П must have had a reasonable expectation of privacy in intrusion *tort does NOT require complete or absolute privacy against intrusion..….just reasonable 2. In a manner highly offensive to a reasonable person (objective) i. depends on the nature of intrusion and ID of intruder  ex) reporter bringing camera into home or office C. Public Disclosure of Private Facts – TRUE facts Elements: 1. Public Disclosure – more than just a few people 2. Private Facts – public cannot know about (i.e.- not of public record) 3. That is highly offensive to a reasonable person (objective) i. ordinary sensibilities unless D knew about hypersensitivity 4. NOT of legitimate public concern i. 1A affirmative defense is there is a good reason for doing so ii. Becomes more likely the more well known a plaintiff is * Facts disclosed here are TRUE – distinguish defamation where false 1. Constitutional Issue – Many states do NOT recognize this cause of action (MS) Why? – 1A free speech conflicts because publicity is true ‒ S.C. had not addressed whether true publication can be CofA 2. Breach of Confidence – person entrusted with confidential information may have obligation not to disclose information to 3 rd parties i. Based on the relationship between the parties (form of malpractice) ii. Disclosure here need NOT be public….may only be to one person iii. Common law tort which some courts still recognize while others label it as invasion of privacy (have not notecarded) Don’t think we talked about this breach of confidence bit. This whole cause of  action is constitutionally suspect. The SC has not said anything anything definitive about it. D. False Light – only recognized by 20 states—least important of the four  Elements: 1. Publication 2. False 3. Statements of fact or inferences of facts….NOT opinions! 4. That cause mental distress i. Only difference between false light and defamation is damages. False light actions do NOT involve damages to one’s reputation. Merely mental distress. ii. Same rules as defamation apply: 1. Public Official/Figure? Yes = П must prove knowledge of falsity or reckless disregard  (“actual malice”, but don’t use “actual malice” language on test!!) to recover ANY damages

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 No = private П’s must prove negligence for publication *Actions for infliction of emotional distress cannot be brought by a public figure for opinions about them (People v. Larry Flint) * EVERY publication about a public figure requires П to prove knowledge of  falsity or reckless disregard….even if action is for emotional distress so long as conduct was a publication and public official (did not note card) (Libel exists to protect reputation from false statement of fact) MISUSE OF LEGAL PROCESS

A. Malicious Criminal Prosecution – Note: D.A.’s are immune from this tort   5 Elements: 1. D instit instituted uted crim criminal inal proceedi proceedings ngs agai against nst P o  Not merely reporting events to police 2. Termina Termination tion of the the procee proceeding dingss in favor favor of of P Cannot bring action until proceeding have ended in P’s favor  o Ex. - acquittal, abandonment of proceedings proceedings by prosecution, prosecution, ect. o 3. Absence Absence of of probabl probablee cause cause for proce proceedi eding ng against against P o  Negligence question – Would a RPP in defendant’s shoes have thought  that the П committed the crime?  Question for the JUDGE……statute will be key in determining o Weems says if reasonable minds could differ, it is a question for the o  jury. 4. Malice The only proper motive for D is to bring a criminal to justice o o Malice = improper purpose for prosecuting; so ANY other motive than  bringing a criminal to justice will be malice! Ex) to collect debt, negotiating to drop charges if _______  Absence of probable cause may raise a presumption of malice for jury to o consider…..this does not apply to malicious civil prosecution 5. Damages ( Law presumes some damages took place; usually will be a lot o Affirmative Defense – proving П actually committed the crime charged by the  preponderance of the evidence....often works b/c B.O.P. is lower in civil actions B. Malicious Civil Prosecution – “Wrongful Civil Proceedings” Elements: (same as malicious criminal prosecution) 1. ∆ initially instigated civil proceedings against П 2. Prior civil proceedings terminated in favor of П (accused) 3. Absence of probable cause for original proceedings i. NOT enough that P merely prevailed in the original proceedings ii. Much more difficult to prove than in criminal malicious prosecutions 4. Malice 50

 

i. Improper purpose for bringing action....ulterior motive than adjudication ii. Absence of probable cause does NOT infer malice (unlike criminal) 5. Damages – must be proved! Not presumed! (like criminal) i. Minority –П must prove special injury to even bring action (element) - special damages to (1) property,  property, (2) liberty, (3) reputation ii. Majority – NO special damages required to recover (MS)  Attorneys- owe NO duty of reasonable care to adversaries; would create conflict of interest. *ONLY way lawyer may be sued for malicious civil prosecution is if he knows his client has improper purpose in bringing lawsuit AND lawyer knows the case has no merits (kind of like conspiracy)

C. Abuse of Process – Criminal OR Civil Process (make sure we did this) Elements: 1. Ulterior Purpose in bringing action (see p.1050) 2. An act in the use of process which is improper in regular proceedings i. Ex) arrest warrant for blackmail, service to harass ii. Note: termination of proceedings in favor of П not required! *Focus on what ∆ did AFTER process for this tort (opposed to malicious prosecution which focuses on ∆’s actions BEFORE process) In terms of proving lack of probable cause- the P. would have to show that a reasonable prudent lawyer in the D.’s position would not think that the claim could succeed. It is much harder to prove civil lack of probable cause. Spoliation of Evidence – failure to preserve evidence; most states and MS do not recognize this tort due to the numerous other remedies available for such

The typical abuse of process situation is when someone gets another person arrested and then goes to them and says if you do such and such for me, I’ll dismiss this whole thing.

MISREPRESENTATIONS

A. In General 1. 2 Causes of Action: a. Fraud/Deceit – intentional misrepresentation allows “benefit of the  bargain” damages  b. Negligent Misrepresentation 2.  Interest Protected – one’s right not to be cheated in a business transaction 3. Many times times plaintiff plaintiff will will be able able to bring several several other causes causes of action (breach (breach of K, restitution, rescind K, ect.) but want to bring tort actual because it allows a  better chance of recovery and possibly more recovery

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4.

Main reason for misrepresentation action is that it allows recovery for pure pecuniary loss in a business transaction where may be no personal injury

In class notes: 3-29-2012 Tort causes of action where the wrongful act of the D has caused pecuniary loss to the P. Fraud  / Deceit A. Concealment and Nondisclosure 1.  Not separate causes of action; they are ways in which fraud can be committed  2. Active Concealment – defendant will be liable if  concealment is material   *Material = likely to affect decision of a reasonable person 3. “Bare” Non-Disclosure – (termite – (termite case) general rule is NO liability as long as do not actively conceal OR no intentionally false statement OR no fiduciary duty i. Depends on jurisdiction – becoming more lenient towards allowing ii. Special Relationship – D may have a duty to disclose if special relationship which party would reasonably expect disclosure iii. Distinguish active concealment of something and bare non-disclosure!

4. MS – no liability liability for non-disc non-disclosure losure;; plaintiff plaintiff must prove 1) P and D were in a fiduciary relationship  2) D did something to actively conceal the issue B. Basis of Liability – Fraud/Deceit Fraud/Deceit *If P can prove fraud, he is entitled to the “benefit of the bargain” Elements: P must prove: 1. Misrepresentation - ∆ must have led П to believe something was true that was not….must have been misleading   i. Must be active concealment here....NOT “bare” non-disclosure! 2. Scienter  – ((a a lack of an honest belief in the truth)  D did not honestly believe what he said was true (subjective standard, NOT RPP standard) *Jury must find: that the D did not honestly believe what he said was true * Hardest element to prove and most important element i. Prosser – that the ∆ intended to deceive (see note 5 1071). ii. Has immoral component - ∆ intended to cheat iii. B.O.P. on П is clear and convincing evidence of such iv. Once established, D’s motive does NOT matter  Restatement (Scienter): Misrepresentation is Fraudulent IF: - maker knows representation is not true - maker does not have confidence in the accuracy of representation - maker knows he does not have basis for his representation 3. Reliance – П must prove that they reasonably relied on misrepresentation i. This is the proximate cause of fraud AND negligent misrep. ii. Cause in Fact + Legal Cause iii. See coverage of reasonable reliance below along w/ limitations 4. Damages – if П can prove fraud, entitled to “ benefit of the bargain” damages

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• •

П must PROVE benefit of the bargain damages to recover!! If D. has a car tthey hey want to sell, the actual mileage is 145,000. Odometer turned  back to 45,000. 45,000. Assume actual value of car is $8,000. But with the fraudulent mileage it is valued at $15,000. The owner offers to sell the car to to the P. for  $10,000. P. thinks they are going to get a bargain. If P. proves fraud—damages. The general rule of damages is to put the P. in the position they should have been in. Here they are out is$2,000. But mostvalue j’s allow the P.– to the recover the(8,000) ‘benefit= of  the bargain’—which the represented (15,000) actual value $7,000. The jury may may also award punitive damages in this this case. So a P. may want to bring a ‘benefit of the bargain’ COA instead of a rescission of the K action. And P. gets to keep the car.

Negligent Misrepresentation (a negligence COA) P CAN recover for pure pecuniary loss in a negligent misrepresentation case, unlike other negligence cases. *The key issue in a negligent misrepresentation case is whether or not the D had a DUTY to use reasonable care in providing P w/ information. Elements of negligent misrepresentation:

(to use reasonable care when speaking or writing) 4 Part Test to  – (to Duty –  establish: 4 Elements i. Knowledge by the ∆ that the information was desired for a  serious purpose ii. Knowledge by ∆ that P intends to rely on information iii. Knowledge by ∆ that if the representation is  false, the P will suffer  some  some damages iv. Existence of some special relationship between P and ∆ that warrants a duty to use reasonable care and establishes a right to rely on information (could be a business relationship, but not buyer and seller of a house).  house).  *Majority says that any business transaction establishes duty 2) Breach of duty – just because duty exists does not mean breach! i. RPP in ∆’s position must not have done same thing 3) Proximate Cause - reasonable reliance i. Cause and Fact and Legal Cause…..see below 4) Damages – usually pecuniary damages but may be more i. NO benefit of the bargain damages – only fraud ii. Damages recoverable include out-of-pocket D’s *Burden of proof in a negligent misrepresentation is by a preponderance of  the evidence. 1)

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Weems example of him walking around the square and negligently giving a guy directions to the federal courthouse (accidentally sends him to country courthouse). Is he liable? Depends on whether he owes the guy a legal duty. (see 4 elements of duty) NOTE: Trouble in fraud C/A is proving scienter; trouble in negligent misrepresentation C/A is establishing duty. (these are the most important elements of each) Publishers: Publishers of books have NO DUTY to investigate the accuracy of the text. Personal Injuries: § 311 says that parties have a duty if, in furtherance of their own interests, give information to another AND knew or should have known that the  safety of  others depends on the accuracy of information (did not notecard these) Check out Note 1 pg 1077 on Restatement where you could hold the authors of the mushroom book liable.

Rule--Generally to be actionable a misstatement must be one of fact and not opinion. Liability to Third Parties – Negligent misrepresentation:

* Remember - anyone who is within privity of K is NOT a 3rd party *Most negligent misrepresentation cases involve accountants; however these two rules below apply to other professionals who give advice to 3 rd parties as well 1. Majority – accountant only liable to those who are in privity of K  UNLESS:  a. 3 Elements: i. Accountant aware reports used for a particular purpose ii. Accountant knows a party is relying on reports iii. Must be some conduct by accountant which shows an understanding of this knowledge  b. Knowledge of accountant is required here…foreseeability NOT enough i. Mere negligent standard would hold them to “indeterminate liability” 2. Minority – NO privity of K required and mere negligent standard applies i. Liable to any foreseeable party………NO knowledge required! Fraud/Deceit: (has a very high burden of proof-the general rule is that the Fraud/Deceit: P. must prove the fraud by clear and convincing evidence, NOT by a preponderance—more than 50%) Must also give a detailed notice One who makes a fraudulent misrepresentation or concealment is subject to liability for   pecuniary loss to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation.

Doctrine of transferred intent does NOT apply to fraud actions as it is in other intentional tort causes of action. Therefore, fraud liability has less of a  scope than negligent misrepresentation.

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Fraud Liability: ∆ is liable to anyone who….§531 1. ∆ intends to defraud OR  2. Belongs to class of persons which P has special reason to know will act in reliance upon the misrepresentation i. “Was in class of persons trying to defraud”

ii. Forese For eseeabi eabilit y aloneto is 5NOT NO T enough!.. enough!...know .knowledg ledge is one of  The Doctrine of transferred intent onlylity applies intentional torts, fraud iseNOT them. (I think the the 5 are assault, battery, ….) Reliance Reliance is an essential element of both fraud/deceit AND negligent misrepresentation causes of action. P must prove both: 1. Relied on the misrepresentation (Reliance) * this is the cause-in-fact  of misrepresentations and fraud actions a. Must Must prove prove “but for” for” the misre misrepre present sentatio ation, n, P would would not have have acted and suffered injury  b. It ha hass to be somet something hing mate material rial that that would would affec affectt the P c. Ques Questi tion on of fact fact for JURY JURY 2. Reliance must have been shown to be reasonable/justifiable *this is the legal cause of misrepresentations and fraud actions a. Must Must prove prove that a RPP RPP would would have relie relied d on misrepre misrepresent sentatio ation n  b. Question of law for JUDGE  JUDGE  Corollaries: used by courts to help determine legal cause Generally Cannot Rely On: 1. False Statements – cannot reasonably rely on obviously false statements (something that could be shown to be false by an ordinary observation) i. Majority – П has NO DUTY to investigate the truth of an apparently reliable statement…even if it could be done easily 2. Opinion – general rule is cannot reasonably rely on statement of opinions; must be a misrepresentation of an existing FACT i. Cannot be basis for  either fraud OR negligent misrepresentation ii. 3 Exceptions: 1) If maker has “ superior knowledge” 2) RPP would have relied on opinion 3) If opinion implies certain facts material 3. Puffing – usually treated as statement of opinion; cannot rely on “puffing” i. Puffing is what owners of property say about it which we would expect  them to say (even if they don’t believe it) 4. Predictions – cannot reasonably rely on what is going to happen in the  future i. ex) price changes, stock market going to go up ii. Exception: if prediction contains an implied statement of an existing, present intention or “state of mind” at the time (that is a fact)

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- P would have to prove D did not intend to do what he said 5. Law – cannot rely on what what a layman says about the law. Can rely on lawyer. Generally CAN Rely On: 6. State of Mind/Intentions – person can rely on representation as to one’s state of mind or intentions (statements of present intention are facts) can be

 basis of a fraud action. i. State of mind is a statement of FACT……distinguish predictions ii. ex) “I intend to pay off my mortgage” this could be a fraudulent statement if he never intended to do it. A cause of action could lie. 7. Statements of Value – can rely on any statement regarding value of something Damages Reasons why P would bring fraud action instead of breach of contract C/A: *B of B Damages are NOT available to negligent misrepresentations!! 1)

P can get “benefit of the bargain” damages in fraud actions (whereas breach of 

K action may only warrant rescission/reliance damages) i. “Benefit of the bargain” (example): represented value of house = $50,000 > P pays $42,000 > actual value = $39,000 (b/c of defects); regular compensatory tort damages = $3,000 (amt. paid less actual value); “benefit of the bargain” damages = $11,000 (represented value less actual value) 2) P can typically get punitive damages in fraud action Benefit-of-the-bargain damages = represented value minus actual value   i. П must prove benefit of bargain damages!! Element! Out-of-pocket Out-of-po cket loss = amount paid minus actual value ($3,000) v. Normal tort remedy remedy and negligent negligent misrepre misrepresentati sentation on damages damages vi. Somet Sometimes imes a tort tort lawsuit lawsuit carries carries with with it a particula particularr kind of damages damages to to go with it, and if you don’t inform the jury of the particular way to award the damages, you will likely lose the case.

XVIIII.

INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIPS

1. Trade Libel Libel (a.k.a. (a.k.a. Injurious Injurious Falsehood Falsehood OR Slander of Title Title OR Disparagement) Publication of false statements about another person’s property, real or  personal, or his or her title thereto or the person’s business in general, of a kind which is calculated to prevent others from dealing with the person when the publication is done maliciously and causes pecuniary loss.

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This is the third cause of action arising from publication of false statements (along with defamation and false light). Trade libel is similar to defamation except the damage is to the plaintiff’s business . Therefore, П must prove special damages. Damage is pecuniary loss caused by people not doing business w/ the P, including P that have done or could in the future do business w/ the P. (ex- making false statement about product’s testing results) Plaintiff Must Prove: Elements – a. a. --motivated by a spite motive, b.—a person who had no business making the statement, c.—if the D. knows what he is saying is false. 1. Publication – to a 3rd party 2. False Statement of Fact – NOT “puffing”! i. Opinions – NO cause of action for trade libel ii. Unfavorable comparison of products rule – NO cause of action IF amounts to an opinion…if can be proven; actionable*** can’t just say our product is  better. 3. Malice – must prove D made false statement about business with malice i. May be done by showing D knew it was false or acted with sole purpose

to harm P’s business 4. Special Damages – P must prove pecuniary loss to even recover to trade libel 2.

Intentional Interference With Existing  Contract Only applies to contrac contracts ts for a term; K’s terminable at-will = prospective advantage P must prove interference was: Weems’s Utah/Oregon Analysis *Must be an existing Contract!!!! (try and remember this)—follows analysis of is it intentional, was it improper, improper by motive or means. I. P. must prove the interference was Intentional AND i. Must have been aware of an existing K with 3rd person….no cause of 

action for “negligent” interference with K relations ii. D intended the person to breach the K or it was substantially certain that the K was going to be breached iii. If it is is a K terminabl terminablee at will, will, then this this would would not be treated treated as an existing K, rather interference with prospective advantage II. Improper—P. must prove Interference was also improper i. Improper motive OR  1. *Competition is an improper motive for existing K’s!!!! i. distinguish prospective advantage 2. Ill will or malice are improper improp er motives 3.  Proper motive may be to exercise one’s rights or protecting the public interest (political) ii.

means Improper  1. Any act that would constitute a crime (ex-blackmail)

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2. 3.

Any act that would constitute an independent tort (ex- fraud) Anything that violates a statute, regulation, or code of ethics

There is another way to decide improper instead of the restatement position on pg. 1149, about half the courts recognize this other method. LOOK UP 7 FACTORS 1149!!!  NOTE: with existing OR prospective K’s K’s will make the ∆ liable for Intentional pecuniaryinterference loss. Lawyers cannot solicit clients. There are times when a person can intentionally intentionally interfere with an existing contract (check (check on this) There is no interference with existing K by negligent interference!

3.

Intentional Interference With Prospective Advantage (more important)  Note: This COA is evolving, the elements are not fully established  Note: More common cause of action, but the analysis is the same. The interference must have been intentional or  substantially   substantially certain it would have occurred, and improper  means or motive……some wrongful act *At-will contracts ARE subject to this cause of action, unlike intentional interference with contract. But this cause of action does not require a K. No existing K’s here P must prove interference was: I. Intentional AND

i. Again, although no K is necessary here, the ∆ must have been aware  of the prospective advantage.....no negligent interference II. Improper i. Improper motive OR  * Competition IS a proper motive – distinguish existing K’s Exception – if ∆’s sole purpose is to drive his competitor out of   business that is NOT a proper motive (a motive just to hurt somebody is improper—prevailing view) ii. Improper means - same as above III. Plaintiff must prove a substantial likelihood of recovery NOTE: “Prima facie tort” - CL COA that allowed P to recover if D did something to harm P intentionally; shifted burden to D to prove it was justified. This concept does not apply here because of need to maintain competitive marketplace. Now, P must prove improper means OR motive….wrongful act  NOTE: Most actions for intentional interference w/prospective advantage involve future K relations. However, this action also protects some non-commercial

interests (ex-received interfering or gift). that in all likelihood they would have the w/will gift. See notes 3Must and show 4 pg 1160.

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Oregon/Utah***Weems theory applies to this tort as well: intentional and improper (motive or means). Half of J’s have adopted this type of theory. The main difference b/t this tort and interference with existing K is that competition IS a proper motive with respect to intentional interference with prospective advantage.

A K at will is classified as interference with prospective advantage. There is a huge overlap between the first and third of these COAs Intentional Interference with Family Relations 4. Loss Loss of of Cons Consor orti tium um Cause of action available to either spouse spouse for injury to their spouse spouse by D. Not available in wrongful death cause of action, rather would be loss of society and companionship. i) ii)

Available for negligent, intentional, and strict liability causes of action. Loss of consortium is the loss of sex, companionship, conjugal rights due to conduct of the D iii) Typically Typically brought at same time as personal personal injury claim, claim, but is also a separate cause of action that can be brought later by a spouse iv)  Derivative cause of action (derived from the primary suit) - any defenses that could be raised in the personal injury claim can be raised in the loss of  consortium claim (i.e. contributory negligence will be deducted from amount awarded) v) Loss Loss of consor consortium tium in a neglig negligence ence actio action-n-It depends on whether you view the marriage as a K terminable at will or a K for a term (i.e. life). One would be an an interference with an existing K and one interference with  prospective advantage. 5. Intentional Intentional Interference Interference w/ Family Family Relations Relations (2 Causes of of Action): Action): I. Criminal Conversations – only have to prove someone had sex w/ your 

spouse, but this CoA has been abolished. II II.. Alien Alienat ation ion of Af Affec fectio tion n Common law cause of action that still exists in minority of states including MS Spouse Must Prove: 1. Allienation of affection for them occurred rd

2. 3 Party  caused this3rd alienation i. “But for” the party alienation would not have occurred

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ii. Causation is a JURY question *This cause of action is ONLY available to spouses (NOT children of marriage or fiancées) Another COA--criminal conversation—suing someone for having sex with your  spouse, but this COA has been abolished in most j’s including MS. 6. Bad Faith Faith Refusal Refusal to Pay an Insurance Insurance Claim Claim (“Bad (“Bad Faith”)(MS) Faith”)(MS) Note: This cause of action is an exception to the rule that a party cannot be liable in tort for interference with his OWN contract unless his conduct amounts to an independent tort (tortuous breach of K) Old Rule = if insurance company did not have legitimate or “arguable” reason to not  pay claim, the plaintiff could recover punitive damages i. Led to large verdicts for negligence so courts adopted new standard  New Rule = П must prove gross negligence, reckless disregard, or malice to recover punitive damages  i. Negligent Conduct – П may still recover actual damages ex) emotional distress, anxiety, ect. ii. Delaying payment alone might be enough to award punitive damages if  the conduct reaches the point of reckless disregard Before the jury can consider punitive damages, the P. must prove that they acted with malice or gross negligence. You don’t get punitive damages in in a civil lawsuit for  mere negligence. There must be some kind of egregious egregious conduct. Civil verdicts in MS do not have to be unanimous.  Note: A plaintiff CANNOT bring a negligence cause of action for conduct that intentionally done would not have a cause of action. So, if can do it intentionally, can do it negligently. EXAM: “JUST ANSWER THE QUESTION ASKED!!!!” (whatever that means)

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