Torts Outine

8/2/2019 Torts Outine

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TORTS:WEEMS SPRING 2010One Call Thats All

WRONGFUL DEATH

A. 2 Part Test1. Interest protected? Interest of person not to be killed2. Basis of liability any culpable conduct (negligence, intentional, SL)

B. Common Law: 2 Rules

1. Tort action failed (abated) ifeitherparty died prior to final judgment-only applicable to torts (not Ks)

2. No action for wrongful death available-couldnt place value on life-this was changed by Lord Campbells Act which led to survival statutes

C. Survival

1. Survival Statutes Cause of Action SurvivesAll states have statute that

allows cause of action whether either party is living or dead (no abatement)a. Majority Party must be survived bystatutory beneficiarywho 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 Ds wrongful act causes injury,the action is available by personal representative of estate

2. MS Survival Statutesa. Allow cause of action forpersonal injury suffered by deceased during his

lifetime.but NOT for wrongful death!*wrongful death actions must be brought under that statute and the injuriesmust have actually caused the death.ex-smoking case

*so. if any doubt as to causation, plaintiff should file action under BOTHsurvival statute and wrongful death (which allows more recovery)

b. The action must be brought by the personal representative of the estatec. If either party dies before final 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 WrongfulDeath Statute1. Allows recovery for ANY act that if it had merely injured plaintiff he would

have had cause of action even though it caused wrongful deathex) negligence, intentional tort, strict liability, breach of warranty

2. Act must be both but-for and proximate cause of death to recover under thisstatute!! May recover under survival statute if not actual cause of deaththough??

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 bring a wrongful death action?

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a. Group 1 Spouse and Children all in this group split damages if aliveb. 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 groupsplit damages

If no one in group 1 or 2 thenpersonal representative can maintain

action and damages will go to estatec. Half sibling entitled to same share as full siblingd. Illegitimate and adopted children also share evenlyf. 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 Campbells statute as it does NOT

restrict recovery to designated beneficiaries who are financially dependent ondecedent; Miss. statute allowspersonal representative of estate to bringwrongful death action on behalf of estate (no notecard)

E. Damages

Medical Expenses

Pain and Suffering of Decedentonly if not killed instantly

Loss of Society and Companionshipof each family member

Property Damageif applicable

Funeral Expenses

Value of Decedents Work Expectancyreduced to PV by calculatinginflation and discount rate

NO recovery of Hedonic Damages allowed!! (enjoyment of life)F. Defenses

1. Wrongful death is a derivative cause of action any defense that could beraised in original cause of action can be brought in wrongful death action

A has a survival action against B and A dies before going to trial. Bs wrongful act

was not the cause of As death. If the SOL has not run, after As death, his person

representative can bring the lawsuit or continue one A started. If successful then the

personal representative can recover the damages A suffered caused by Bs wrongful

death up to As death. The proceeds go into As estate.

INTENTIONAL TORTS

Introduction

I. Two part test to identify a proper TYPE of tort Cause of Action: Ask for Each Tort What interestdoes this cause of action serve toprotect? What kind ofconductdoes the cause of action serve toprevent?

-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 violated2. Violation of protected interest was done intentionally2 Ways below

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Assaultcreated to protect the interest to be free from fear of an imminent, harmful

or offensive contact.

Batterycreated to protect the interest to be free from harmful or offensive touching

of the person (contacts with the body). It protects this interest from intentional

conduct.

A question to ask is whether the violation was done intentionally?

Negligence COA invented to protect the interest from personal harm. Designed to

prevent negligent conduct.

GENERAL

A. Intent: May be Proven in 2 Ways1. Defendants purpose of act was to cause invasion of protected interest, or

2. Defendant had knowledge that invasion of protected interest wassubstantially certain to occur following his act not absolute certainty

Substantially certain= something is going to happen unless someintervening force stops it; more than a serious risk the event will occur

Defendant must have actual knowledge that events will occur in order tohave done it intentionally..opposed to negligence RPP/objective

Mere knowledge and appreciation of a risk does NOT equal intentionalconduct unless substantial certainty present

Ultimately, the s conduct must have been unlawful or without legaljustification but has no burden to prove this (D proves was lawful)

Driving to Jackson 120 mph is not intent. It is reckless and negligent.

The intent must be to invade the protected interest.*Note: a minor may possess intentand 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)

3. Negligence v. Intentional ConductSOL is 3 yrs. SOL is 1yr.*proximate cause narrow proximate cause broader employee cant sue employer can sue if purposeful conduct*contr. negligence a defense NO contr. negligence defense

*punitive damages harder punitive damages more likelyno nominal damages nominal damages awarded (ex-trespass)

*Negligence involves a foreseeable risk that can be either known or unknown towhereas intentional torts require actual knowledge of a known danger that is eitherintended or substantially certain to occur difference is a matter of degree

4. Mistake NOT A DEFENSE

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a. mistake as to ID of person or property does NOT negate intentb. Ex) trespass on land defendant thought he owned or cutting wrong timber

5. Insanity NOT A DEFESNSEa. Insane people are liable for their intentional actions (same as negligence)

provided that plaintiff is able to prove requisite intent

b. Policy reasons: Same as negligence- 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 intent6. Transferred Intent2 Part Test

1. D must have intended to invade interest of ONE party2. D must have had no right to invade interests of ANY party; then D is liable towhomever interest he invaded.ONLY applies to 5 intentional torts in Trespass Writ of Common Law:

1. Battery 2. Assault3. False Imprisonment 4. Trespass to Land

5. Trespass to Chattels*so Defendant must intendand accomplish one of 5 for doctrine to apply

BATTERY

A. 2 Part Test (Ps 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 to make out prima facie case, P must prove:1. Ds act causedharmful or offensive contact2. 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 occur3. Act was theproximate cause of injuries..ALWAYS!

Cause in fact

Legal cause4. Damages occurred

C. Harmful or offensive conduct1. Physical contact not required. Battery includes touching ofanything attached

to the body (ex- clothing, plate in hand, cane)(but words alone not enough)

2. Plaintiff does NOT have to be conscious of the act at the time! (unlike assault)1. Absence of consent is required2. Consent will be assumed if contact is customary or reasonable (ex-tap on arm)

D. Ordinary Sensibilities Test1. Unless the D has reason to believe otherwise, the test is would the contact be

harmful or offensive to a person ofordinary sensibilities- NO hypersensitivity allowed..unless D hasspecial knowledge of such

E. Damages

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1. Eggshell Rule D is still liable for unforeseeable resulting injuries so long asthe D intended the offensive contact

3. Emotional Distress P does NOT have to prove a physical injury as a result ofemotional distress to recover; also can recover for pain and suffering. (See page37 of the Fisher case).

ASSAULT

A. 2 Part Test Weems hasnt said anything about a 2 part test yet.1. Interest Protected? Right of person to be free from reasonablefear of

imminent harmful or offensive contact with the body (battery). Talk aboutfuture conduct is not enough.

2. Basis of Liability? Intentional conductB. Prima Facie Case

1. Ds act causedP to be in reasonable fear of imminent harmful or offensiveconduct

2. D acted intentionally Intended or Substantial Certainty that P. would be put in position

3. Act was theproximate cause of injuriescause in fact and legal cause4. Damages occurred damages are purely emotional distress!

C. Fear of Imminent Battery (See Western Union case on pp 38)1. Consciousness Required P must be aware of the conduct for an assault2. 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 usually4. Words Alone

Traditional Rule- words alone not enough.must be some overt actModern Rule some courts do not require overt act and allow action5. 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 versaDamages recoverable for assault are emotional distress. The P. has to be conscious

of the assault. Every battery does not include an assault, most do. If her backwas 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 Test1. Interest Protected? Right of person to be free from confinement against ones

will. There is no precise definition of confinement. Even leaving town.2. Basis of Liability? Intentional conduct

B. Prima Facie Case (elements)

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1. Ds act causedP to be confined against his will2. D acted intentionallyaccidental confinement is NOT enough

Intended to confine or was Substantially Certain to confine3. Act was theproximate cause of injuries4. Damages occurred Mental Distress

5. The P. must know that they were confined toC. Confinement restricting a person from leavinga 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 persons 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 Imprisonment3. P must have no reasonable means of escape in order for confinement4. Must be a threat of force.implicit or explicit (but future threats not enough)

5. Can restrain someone physically, by threat of force, or by keeping his or herpersonal property (hard to prove)

6. False arrest term for false imprisonment by a police officer when one istaken into custody by a person who does not have legal authority to do so*Affirmative Defense/Privilege = having lawful reason to do so

INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS

A. 2 Part Test1. Interest Protected? Right of person to be free from severeemotional distress

2. Basis of Liability? Intentional conductNote: emotional distress have evolved into a separate cause of action itself

B. Prima Facie Case 4 Elements P must prove:1. Conduct must be intentional ORreckless

Note: reckless is added here by Restatement but most courts disregard this asintentional 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 issubstantially 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 AND3. P must sufferbodily injury themselves OR conduct must have been

directed at theirnuclearfamily2. Conduct must be extreme and outrageous if conduct exceeds all bounds

tolerated by a decent societyNote: this ONLY applies to private s..public standard below if conductinvolves apublication

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3. Causal connection between the wrongful conduct and emotional distress4. Emotional distress must be SEVERE to even allow recovery at all

-so severe that no reasonable person could be expected to endure itC. Distinguish: Intentional v. Negligent

1. Intentional emotional distress requires NO physical injuryjust must be severe

-although E.D. damages for other intentional torts need not be severe2. Negligent emotional distress requires a medically cognizable physical injuryC. Plaintiffs subjective sensibilities are relevant and may be a factor; even if the

plaintiff is hypersensitive.. Ds knowledge of such will also be a factor

Note: If a public official brings an action for emotional distress and the conductinvolves a publication of fact, then must prove the publication was done withknowledge of falsity or reckless disregard.opinions cannot be basis of action

TRESPASS TO LAND

A. 2 Part Test1. Interest Protected? Right of person to exclusive possession of real property*unauthorized entry onto anothers landby person or some thing

2. Basis of Liability? Intentional conduct

No such thing as negligence trespasssimply a negligence claim inwhich actual damages must be proven. Negligence requires damages

*No actual damages required for trespass action nominal damages arerecoverable so P can assert rights.to quiet title or action for ejectment

B. Contrast: Nuisance v. Trespass

Difference is the RIGHT that is being interfered with to determine which actionlies; right to exclusive possession v. right to the use and enjoyment

B. Trespassmust be committed by a tangible mass coming onto landmust be aphysical invasion of property (traditional rule that has become more flexible)1. Airborne particles must accumulate on land and do not dissipate for trespass2. Can only recover ifactual damages are shown in regards to airborne particles3. Nuisance if airborne particles quickly dissipate or simply pass through

C. Change in status A person or things status on the land can change (go fromnon-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 land1. Airspace Trespass protects airspace within the immediate reaches of the

land .actual portion that plaintiff can be make use of3. May have trespass below the surface as wellE. Consent must common affirmative defense/privilege for intentional torts

TRESPASS TO CHATTELS statutory cause of action

A. 2 Part Test1. Interests Protected?

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Right of person not to have his personal property damaged

Right of person not to be deprived of use of the chattel2. 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. Possessor is deprived of his use of chattel for a substantial period of time3. Bodily harm is caused to the possessor OR to a legally protected interestof the

possessor (ex- his business)4. Dispossesses other of the chattel.physical dispossession

C. Other Elements1. P must show actual damagesharmless intermeddling is NOT enough!!

*damages include actual damages to chattel or damages forloss of use2. P authorized to use reasonable force to stop intermeddling2. Trespass to chattels is survived today to allow recovery for unauthorized use of

personal property not sufficient to establish conversion (higher damages)

CONVERSION pp. p.85The 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 requiredto pay the other the full value of the chattel.pp. 82

A. Interest Protected? Freedom from another exercising dominion or control overpersonal property/ right to not have property substantially impaired / right to nothave property deprived of its use for a substantial period of timeBasis of Liability? Intentional conduct1. Definition Exercise ofdominion 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 chattelAn action for conversion asks the court to sell the property and the D. will have topay 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

Actors intent to assert a right in chattelinconsistent w/owners

Actors good faith

Harm done to chattelNote: Where the intermeddling does not completely or substantially deprive ownerof his possessory right the tort is merely trespass to chattels

-act must be serious enough to warrant D paying full value3. 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 Property can be converted so long as property (info. w/ $ value)4. Ways in Which Conversion may Occur:

Acquire possession (steal it)

Damaging or altering it (intentionally run over animal and kill it)

Using it (bailee seriously violates terms of bailment)

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Receiving it (obtain possession after purchase from thief)

Dispose of (bailee wrongfully sells chattel)

Misdelivering it (deliver to wrong person by mistake)

Refusing to surrender it (bailee refuses to return chattel)Note: innocent mistake is not a defense to conversion or trespass to land/chattels

PRIVILEGES

* Affirmative Defenses to Intentional Torts --to PlaintiffsPrima Facie Case* Defendant has the Burden of Proofon the preponderance of the evidence--

A. Consent1. Objective standard Would a RPP in the Ds position under the circumstances

have thought that P consented?-considers surrounding circumstances to ascertain Ps 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 D. believe that she consentedto the vaccination?

3. Consent obtained by misrepresentation or misinformation is not valid consentIf the D. knows there is misapprehension by the P. or the D. contributed to amisapprehension of the facts, there is no consent. Ex: birth case with rando.

4. Physicians general rule is must get informed consent to operate (express)*Exception: Where consent is implieddoctor will use as defense: Elements

1. Patient is unable to give consent intoxicated, unconscious, ill2. There is a risk of serious bodily harm if delayed emergency3. A RPP would consent to treatment AND

4. Physician has no reason to believe this particular patient would refuse

5. Withdraw of Consent by PatientBefore Surgery..physician must conduct new informed consentDuring Surgery..withdrawl must be clearly made in sound mind AND

must be medically feasible to stop6. Minor consent of parent needed for any medical procedure7. 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 ifthe 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 uponafterwards ascertaining his true character.

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B. Self-Defense: Use of Force1. When? Whenever it 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 longer2. 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 toself-defense against person he initially threatened

3. Provocation - Insults, verbal threats alone do not justify use of force in selfdefense

If abusive word are accompanied by actual threat of physical harm, thenmay 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. may use whatever force necessary, even deadly forceMin. Must retreat to wall rather than use deadly force6. Defense of Others may use force reasonably necessary so long as person

protecting family or close friend6. Mistake Rule As long as the mistake was R/ (if R/ believed was in physical

danger), D can assert self defense

D. Defense of Property1. Reasonable Force A person is privileged to use the force reasonably

necessary to prevent the taking of property2. One cannot use force when they are absent that they could not use it they were

presentex) loaded spring gun or traps3. Deadly Force General Rule--deadly force to protect property NOT allowedExceptions: 1) someone breaking into your home and threatening you or

family then may use deadly force (castle doctrine)(Defense of person not property)

2) MS allows to prevent commission of a felony2. 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

E. Recovery of Property repossessing taken chattelsCase of Hodgeden v. Hubbard p. 114.

a. General Rule = cant use force to recover property b/c its easy to file a writof replevin

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1. Fresh pursuit rule Owner can usesome reasonable force to retake propertywhich has been obtained by force or fraud and pursuit is fresh

Fresh Pursuit = prompt discovery of dispossession and persistent efforts torecover...if any undue lapse of time owner must use replevin (legal remedyReasonably 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 processif this can be done without breach of the peace.

2. Self-Help If the owner can locate the taken property, he may retake theproperty if the can do so without breaching the peace (repossession)

-if peace will be breached, owner must use replevin action3. Shopkeepers Privilege - merchants have privilege to detain suspects for areasonable investigation if there are reasonable grounds to believe suspect hasshoplifted (RPP standard)

- this doctrine is used as a defense to lawsuits by accused shoplifters- extends to people who have left premises but in vicinity

- reasonable mistakes are a defense!- Shopkeeper will not be liable ifjury finds two things:

1. The shopkeeper had reasonable (RPP) grounds to search2. Investigation that proceeded was reasonable.

If D reasonably believed the P had unlawfully taken goods held for sale in the defendants

store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.

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 uponhis person or otherwise any unpurchased goods, wares or merchandise held or owned by any store or mercantileestablishment, 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 purposeof ascertaining whether or not such person is guilty of shoplifting as defined herein. Such questioning of a person by amerchant, merchant's employee or peace or police officer shall not render such merchant, merchant's employee or peaceor police officer civilly liable for slander, false arrest, false imprisonment, malicious prosecution, unlawful detention orotherwise in any case where such merchant, merchant's employee or peace or police officer acts in good faith and uponreasonable 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 another1. 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 theexpense of anothers property, the D will be liable

Note: action must be intended.NOT act of God,but ship/dock case

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G. Authority of Law If D is duly commanded or authorized by law to do what hedoes, he is not liable for doing it if done in scope of employment1. Discretionary D will not be liable2. Ministerial(not a matter of choice) Agent will not be liable but govt will be

Note: employee must be in scope of employment, if not will be personally liable

H. Discipline1. Corporal punishment by teachers Must be reasonable and procedural

guidelines followed2. 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. Justification1. NOT a privilege in many jurisdictions!

2. Where it is a privilege, it effectively allows D to defeat Ps cause of action byproving that D did what aRPPwould have done under the circumstances3. Burden of proof shifts to D3. Vast Majority - If defendant is going to claim a privilege, then must assert one

of the named defenses above (self-defense, defense of others, necessity, etc.)1. Responding to name calling is not a defensecouldnt even introduce

evidence.**If you are going to bring an intentional tort, your cause of action must be a recognizedone.If D wanted to say Ok I did that but I had a privilege to do it. The ct asks what privilege? Dthen 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 Circumstances1. 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

STRICT LIABILITYno fault necessary for liability

A. Trespassing Animals

The CL rule: Owners of animals of a kind likely to roam and do damage is strictlyliable 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 must prove only that:

1) Animal belonged to OR in possession of defendanteither liable

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2) Animal caused the type of damage a trespassing animal wouldnormally cause to Ps property

b. Rule not applicable to 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, thenowner is presumed negligent. BOP shifts to D to prove not negligent.a. First rule deals with fed. or state highwaysif animal causes 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 road, county highway, city street, etc.then it is astraight negligence case. The P. will have to prove the owner wasnegligent in letting it get loose.

*Action here is fornegligence!basically becomes res ispa case If animal on any other road, no presumption of negligence and BOPon

CL B. Dangerous/Wild Animals1. Wild Animals Owner/Keeper ofwild animal is strictly liable for damage

caused by the animal2. Dangerous Domestic Animals Strict liability will be imposed if P can prove

the ownerknows or has reason to know domestic animal has viciouspropensities.

*Knowledge that animal has dangerous propensity abnormal to its class*If P cannot prove owners knowledge of this then must prove negligence(Strict liability will not apply).

3. Note: If people are on the premises then classification system would apply too4. Per say, no dog is a wild animal (but vicious propensities could create strict

liability)

C. Strict Liability forAbnormally Dangerous/Ultrahazardous Activities1. Rylands v. Fletcher(know this case as associated with this COA) Developed

new cause of action imposing strict liability for unnatural uses ofland/abnormally dangerous activities

Synopsis of the Rule: when a non-natural use of land is made, the D is absolutelyliable 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 peril2. 1st Restatement ultrahazardous activity Case of Miller v. CivilConstructors, Inc.

a. 2 Part Test (question of law) (MS following this approach) Activity involves a risk of serious harm which cannot be eliminated by

the exercise ofutmost (reasonable) care. Activity is not a matter of common usage (i.e. blasting Fails or passes?

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b. Minority view now3. 2ndRestatement Abnormally dangerous activity

Rule: Owners and users of land who conduct abnormally dangerous activities orconditions are strictly liable for harm to person, land, or chattel even though theutmost care was exercised

a. 6 Factors: For Judge (always for Judge) to Weigh (question of law) High riskof some harm (page 727) Likelihoodresulting harm would be great Inability to eliminate risk by exercise of due care Extent activity is not ofcommonusage Inappropriateness of activity to place Social value v. Dangerousness (balancing test for public policy)

b. Factors depend on circumstances and nature of location!!!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 of activities held to be abnormally dangerous

a. Toxic Chemicalsc. Crop Dustingj. Fumigationk. Blasting - most common

5. Question of whether activity is abnormally dangerous or not is always aquestion of law for the JUDGE only!

D. Limitations on Strict Liability1. Scope of liability Strict liability is limited to liability for harm resulting from

that which makes the activity abnormally dangerous..the kind of riskwhich makes activity dangerous in the first place

Judge Asks: What risks of harm make this activity so abnormally dangerous? Wasthe type of harm that resulted the reason courts decided the activity wasdangerous in the first place? If not, then not liable under strict liability count.

i. Comparison w/ scope of liability from other causes of actiona. Scope is smaller than negligence which is smaller than intentional tortsb. Why? because no fault is required. Gotta get all this straight.

2. Acts of God if injury results from act of God which owner had no reason toanticipatemust be unforeseeable act of God

3. Assumption of Riskif plaintiff voluntarily encounters the known risk with fullappreciation of its magnitudea. most states now merge this with contributory negligence but assumption ofrisk requires a higher degree of contributory negligence!......be carefulb. applicable to both wild animals and abnormally dangerous activitiesex) 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 ISa defense to products liability. Contributory negligence is not a defense

to a strict 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 amanufactured product from manufacturer, seller, or other supplier of goods

McPherson v. Buick

Synopsis of the rule: 1) if a product is reasonably expected to bedangerous 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 Liability1. Early law requirement of privity could only recover if you purchasedproduct directly from the manufacture..no longer required for any theory!

2. Negligence P may sue for injuries caused by defective productsa. Manufacturers have a DUTY to make products carefully IF there is a

foreseeable risk of harm involved if product is not made properlyb. Imposed usual negligence requirements Did the manufacturer act as a

reasonable prudent manufacturer under the circumstances?c. 4 Elements: Go Through on Exam!!!

1) Duty above 3) Causation but for/legal2) Breach of Duty RP manufacture UTC 4) Damages

d. Applies to ALL sellers of chattels.even if they only manufactured parte. Ways manufacturer can be negligent

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. Breach of Express Warranty

a. NOT puffing (statement of opinion) must be unequivocalrepresentation

about product which seller relied on that later turned out to be falseb. P must prove: warranty both existedand was breached

Manufacturer made misrepresentation of material fact about product*must be engaged in the business of selling chattels to publicP 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 OReven that product was defective (only elements above)

d. Doesnt matter if innocent representation.privity of K not requirede. Focus on what was said or written about product; not product itself

4. Breach of Implied Warranty of Merchantability implied by law 2 Typesa. Implied Warranty of Merchantability Implies that product is reasonably fitfor its intended usemost common* runs with the good no matter who owns it (unlike express warranty)

b. Implied Warranty of Fitness for a Particular Purpose implies thatproduct is reasonably fit for the purpose for which it is sold*if buyer expressly or implicitly makes known to seller his purpose for thechattel and relies on sellers skill or judgment in purchasing product

c. Manufacturers cannot disclaim implied warranties!d. Ps burden of proof 2 Elements

1. Product was not fit for its intended purpose

2. Plaintiff was injured as a resulte. Strict Liability because P does not have to prove faulte. BIG: This action has beenengulfed by strict liability in tort actions

because implied warranties often had many contractual defenses bymanufacturers (ex-notice requirement for opportunity to cure product) thatcannot be raised in strict liability in tort action (b/c lies solely in tort)

5. Strict Liability in TortNOT absolute liability!! (must be defect)a. Difference from implied warranty is mere terminology (unfit v. defective)

and fact this action lies solely in tortNote: strict liability in tort is the name of the cause of action!b. Plaintiff must prove:

1. Manufacturer made product2. Product reached consumer without any substantial change in condition3. Product was defective (manufacture, design, failure to warn)4. Defect caused plaintiffs 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 toliability for physical harm thereby caused to the ultimate user orconsumer, or to his property, IF: p. 763-4i. The seller is engagedin the business of selling such products ANDii. The product reaches the userwithout substantial change in the

condition in which it was sold Does NOT matter if:

i. Seller exercised all possible care.negligence not requiredii. No privity of Kiii. Consumer didnt buy directly from seller

d. EXAM: Use the 3rd Restatements definitions for defects applied to402A!!! Not defective condition unreasonably dangerous!!!

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e. Strict Liability if defect caused injury no fault is requiredf. Majority of jurisdictions do NOT apply strict liability to prescription drugs

or medical devices.only negligence cause of action availablef. Again.strict liability in tort has engulfed implied warranty actions:3 Actions Available Today: 1) Negligence

2) Breach of Express Warranty3) 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 is not the insurer of the users safety! (absolute liab)

Ex) not good enough if P simply injured by product must be defectStrict 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 carea. subject to strict liability if defect is proximate cause to injuryb. product is evaluated against the manufacturers own standardsc. Ps burden of proof (Preponderance of the Evidence-POE)

1. manufactured and sold product which at the time has a defectivecondition unreasonably dangerous2. Product reached consumer without substantial change in condition (P.does not have to prove negligence in the factory. Another thing P can do iscall an expert).3. Defective condition was the proximate cause of Ps injury

Manufacturer will not be held liable under a negligent standard if he can showthat it had the best quality control procedures in the entire industry. Thatwould show he took reasonable care.Under strict liability standard, he will be held liable.

*MS assumption of risk is a complete defense which bars recovery

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: This is really the only defect subject to strict liability because theothers involve some form of negligence by manufacturer!!

2. Design Defects failure in design; challenges entire product line*whenforeseeable risk of harm posed by a product could have beenavoided by a reasonably alternative design by the seller or distributor

Involves Balancing Test: 2 Viewsa. Consumer Expectation Test(Minority) Was the design more dangerous

than an ordinary consumer would expect it to be?

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Problems

Ordinary consumer knows nothing about design of products

Patent danger rule If danger was open and obvious, thenthe product could not be more dangerous than the ordinaryconsumer would expect it to be.failed to encourage safe products

b. Risk Utility Analysis MS and Majority Weighs utility of product vs. risks and alternativesif risk outweighs

utility, then product is defective (much like Hands formula) 7 Factors: to determine whether defective: KNOW

1. Products utility to consumer and public2. Likelihood that product will cause injury and seriousness ofinjury if it does3. Availability of a safe alternative4.Manufacturers ability to eliminate the danger without impairingproduct or making too expensive5. Users ability to avoid danger by the exercise of care in using the

product6. Users anticipated awareness of dangers inherent to productbecause of public knowledge or warnings7. Feasibility of spreading the loss by setting the price or carryingliability insurance

Note 4. P 783. Reasonable Alternative Design. Unlike the principal case, most jurisdictionsrequire that the P prove an alternative feasible design in order to prove design defect.The OBrien case is a minority view.

This makes design defects cases in MS and the majority of jurisdictionsa negligence 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 showingcompliance with the state of the art--considers products design in lightof technology and expertise of trade at the time; evidence is admissible

**Plaintiff must prove there is an alternative feasible design for theproduct to win design defect case!!!(majority and MS; factor in others)

Inherent Characteristic Rule a product is NOT defective if injury iscausedby an inherent characteristic of product that cannot be eliminatedwithout hindering products usefulness AND is known to general public

(ex- alcohol, tobacco) MS Product Liability Statute: Design Defects

i. Follows inherent characteristic ruleii. P must prove: 1) manufacturer or seller had actual or constructive

knowledge of defect when product left their control AND2) reasonably alternative design was feasible

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

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In a design defect against the manufacturer, the breach ofimplied warranty and negligence require proof of the sameelements and use of identical evidence.

P must prove something is wrong with the Product itself thatmakes it dangerous.

Summary: That the test which is preferred by the big majority of the

jurisdiction is the RISK UTILITY ANALYSIS. A few states usethe Consumer expectation test

Feasible alternative designNote 3 @ p 777. Crash-proof carsNote 4. Category Liability and Products such as Whiskey, Tobacco,and ButterNote 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 402ANote 9.

Because the test of design defect is risk utility analysis, and risk utility test is a negligentcase.How can a strict liability cause of action be a negligence case?

3. Warning Defect claim that the product did not contain adequate warnings orinstructions; failure to warn or instruct of products foreseeable risks of harma. 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 Ps injuries!!!

b. P must prove D knew or should have known of the danger. If D did notknow of the danger, not liable for failure to warn-but may put up state of the art defense that risk was not knowable inlight of the best scientific knowledge at the time of manufacture*risks must be reasonable foreseeable at time of manufacture

ANDERSON V. OWENS-CORNING FIBERGLAS CORP. 786Knowledge 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 doesnt 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.

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Two kinds of warning problems:

1. No warming at all: would a

reasonably prudent

manufacture have given a

warning to what the defect was?

Most jurisdiction would treatthis as a negligent 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.

Is the warning or inadequate warning as

Strict liability in Tort: 3 of them

A. Mismanufacturing defect strict liabilityB. Design defect strict liability

C. Warning/instruction strict liability

The mismanufacturing defect is strict liability.

The test is a negligence standard.

Read notes 4, 5 @ p. 790

c. Cannot avoid liability by simply warning Warnings are not a substitute fora reasonably safe design (ex-warning that product is badly designed)

d. NO DUTY to warn of obvious dangers! (patent danger rule)e. Allergic Reactions and hypersensitivity warnings are requiredf. Determination of whether warning is adequate is usually left to the JURYh. Learned Intermediary Rule when product passes from intermediary (i.e.

doctor) to consumer (i.e. patient), the warning must be adequate as to thereasonably prudent intermediary

i. Read and Heeded P entitled topresumption that the user would have readand heeded an adequate warning (can be overcome)

j. Warnings defect cases are a negligence cause of action NOT S.L.!

MS Statute: Warnings Defect Casesi. Adequacy of warning = duty to provide same warning areasonable prudent manufacturer would have provided under thecircumstances

ii. Learned intermediary rule in effectiii. P must prove sellerknew or should have known of

danger and that danger was not realizable by ordinary consumeriv. Patent Danger Rule - no duty to warn of open and

obvious dangers

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v. Assumption of risk is a complete defense (all defectcases)

vi. MS S.C. says a person cannot rely on an owners manualthat was never read

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. Plaintiff has BOP by POE in strict liability tort cases2. Expert testimony usually required3. Subsequent Remedial Measures Rule Rule of Evidence that says P cannot

introduce evidence that D has improved product or condition since the accidentoccurred in ANY tort actiona. Rationale courts want manufacturer to improve products w/o worrying

about P bringing it up as proof of culpable conduct4. 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, copy of MS Products Liability Act. MSSec 11-1-63

Daly V. General Motors Corp.

Synopsis of the Rule:

The principle of contributory negligence can be applied to strict liability cases toreduce a plaintiffs recovery.

1. Contributory negligencea. Note: Contributory negligence is NOT a defense to intentional torts! Also,mere contributory negligence is NOT a defense to non-products liability strictliability torts (ex- wild animals).but assumption of risk IS a defense to theseb. Majority Contributory negligence is apartialdefense to strict liability in

tort cause of action. Comparative negligence rules apply. (MS as well)-so, Ds fault will be subtracted by % P was at fault

Minority does not recognize contributory negligence at all or has limited itto cases where P has assumption of riskMS recognizes contributory negligence as a partial defense up until thepoint where Ps fault becomes an assumption of risk, which will be a

complete defense and bar recoveryThe Supreme Court adapts theRisk Utility analysis (in design defect)

c. Ps negligence in failing to discover a defect or guarding against thepossibility 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 of fairness. It wouldnt

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 its a mismanufacturing defect, then its a strict liability case. No

negligence involved.

2. Assumption of Risk most courts allow assumption of risk as a completedefense to products liability action (not merged with contributory negligence)

a. Voluntarily encountering a known danger with full appreciation ofits 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 fora. Manufacturer is NOT liable forunforeseeable misuses of a product thatcause injury..is a complete defenseb. ManufacturerIS liable for theforeseeable misuses of their productc. 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 notdefective for its intended use. Even if the user misuses the product, that stillis 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 defectsa. Congress must clearly intend to preempt the field (legislative 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 providingadequate warning if it complied with governments regulations

E. Defendants Other than Principal Manufacturer

1. Original Chain of Distribution - 402A provides that any seller who is in thebusiness of selling such products and in the original chain of distribution issubject to strict liability (ex- retailer, wholesaler, distributor, ect.)a. Original chain is from manufacturer to 1st consumerb. A retailer or seller is entitled to indemnity from the manufacturer thoughc. *MS is in minority and does NOT allow seller other than

manufacturer 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 originalchain of distribution..can sue for negligence though

3. Occasional sellerwho does not hold himself to have any knowledge or skill inthe 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). Ifthere is a defect on the car rented from Hetz, you can sue both Hetz and themanufacturer 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 strictliability 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 forproduct defects injuring someone for defects in how home was built (IWH)

o Subject to Statute of Repose Defense 6 yrs.

A. Other Suppliers of ChattelsPeterson v. Lou Bachrodt Chevrolet Co.Summary: Ps children were injured (one died and other severely injured) whenthey were struck by a used 1965 Chevrolet. P (father of the kids) sued the driver,owner of the vehicle and the 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 ordinarycourse of business and that the time the automobile left the Ds control it wasdefective and not reasonably safe for driving and operation.

That the injuries and the death were the direct and proximate result of thedefective 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

MANUFACTURES 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

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: their position in the 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 thecontrol 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 productthat Wal-mart sold and it hurt somebody. Whenever someone has to pay for thewrongful act of another party, they have the right to indemnity from the party thatcommitted the wrongful act. (The employer and employee scenario applies here.The employer has the right to be indemnify by the employee who is the wrongdoer)

Walmart is considered to be in the original chain of distribution. Such entities can besued.

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 gonebankrupt.

D. Services NO strict liability against a provider of services rather than the sellerof a product

Strict liability applies to conduits of distribution. Service providers such as a healerof illness are not subject to strict liability.

The essence of the relationship is a service. The items used are simply instruments toaccomplish 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 transactionpredominately involves aproduct

Courts will NOT apply strict liability if the transaction is predominantly aservice, 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 extendsnot only to physicians or other healthcare providers but also to commercialsuppliers.

3. Doctors or pharmacists proscribing drugs that are FDA 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 liability purpose?

StatutesCommon law

It is the judge rather than the jury who decides whether the situation fits within thestatutory definition or is one to which strict liability should apply.

The question is what is the essence of the situationservice or product.

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E. Harm Other than Personal Injury/Economic Loss

1. Economic loss resulting from personal injury:a. Lost wages are recoverable from personal injuriesb. Loss of consortium recoverable for personal injury in products liability cases

2. Economic Loss without Personal Injury or Property damage:a. An action does not lie when a product simply did not perform as expected.b. Product liability laws were developed largely to provide compensation to P who 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 forpure 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. Code Ann. 11-1-63 Products Liability Suits

Subject to section 11-1-63

In any action for damage caused by product (personal injury or traumatic damage)

except commercial products, the manufacturer or the seller is not liable if the P

doesnt prove on the preponderance of the evidence

1. Applies to any action for damages caused by a product no matter what name

you give action (no recovery for damage to product itself)b. Manufacture is liable if P proves by Preponderance of Evidence that

at time product left control of manufacturer:(i) 1 Deviated in material way from the manufacturers specs

(mismanufacture), or2 Failed to contain adequate warnings/instructions, or3 Designed in defective manner, or4 Breached an express warranty, AND

(ii) Defective condition rendered the product unreasonably dangerous tothe consumer AND

(iii)Unreasonably dangerous condition proximately caused injury

c. Product not defective if harm caused by inherent characteristic ofproduct

d. In ANY action alleging that a product is defective, the manufacturerwill NOT be liable if the P assumed the risk

e. Inadequate Warnings manufacturer not liable if P does not prove by POE that manufacturerknew or should have known about thedanger that caused the injury

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(i) An adequate warning is one that a RPP in similar circumstanceswould have provided.(ii) Manufacturer not liable if danger is open and obviousf. Design Defects manufacturer not liable if P does not prove by

POE that at time product left manufacturer:

(i) Manufacturerknew or should have known about danger that causedinjury AND(ii) There existed a feasible alternative design for productg. A manufacturer who is found liable for defective product shall

indemnify a seller who is not at fault.but this is obsolete becausestatute also provides that sellers who are not at fault are NOTliable!!-this is the minority view though..402A holds sellers liable

h. (h) In any action alleging that a product is defectivepursuant to paragraph (a) of this section, the seller of a

product other than the manufacturer shall not be liableunless the seller exercised substantial control over thataspect of the design, testing, manufacture, packaging orlabeling of the product that caused the harm for whichrecovery of damages is sought; or the seller altered ormodified the product, and the alteration or modificationwas a substantial factor in causing the harm for whichrecovery of damages is sought; or the seller had actual orconstructive 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 notactively negligent, but instead are mere conduits of a

product.i. This section does not eliminate any common law defenses

Assumption of risk will be a complete defense. The statute doesnt say anything expresslyabout contributory negligence.Contributory negligence remains a defense.The statute doesnt 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 negligencestandard.

Preemption:

NUISANCE

Literal meaning: harm, annoyance, or inconvenience.

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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 means more than the public should have to put up with

2. Factors (most states have statutes enumerating specific public nuisances)a. Does the conduct substantially interfere with the public health, safety, orwelfare?

b. Is the conduct prohibited by statute, ordinance, or regulation?c. Is the conduct of a continuing nature or has it produced a permanent or long

lasting detrimental effect on a public right (to the actors knowledge)?3. Recovery for Public Nuisance In order for aprivate person to recover

personal damages or get injunction for a public nuisance, the person must showthey suffered harm of a different KIND from that suffered by the generalpublic while exercising the right common to the public that was interfered with*harm must be different in kind not necessarily degree

4. Remedy is always an injunction if brought by the public5. A private citizen bringing a public nuisance suit must show that they suffereddamages difference in kind from the general public. Ex: fisherman and clamdiggers could recover during oil spill.

B. Private Nuisance An unreasonable and substantial interference withthe use and enjoyment of a property interest in land *does NOT require a physicalinvasion (unlike trespass).The Restatement [Restatement (Second) of Torts, 821D] defines a private nuisance as "a nontrespassory invasion ofanother'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 nothave the use or enjoyment of their land substantially and/or unreasonableinfringed.

2. Who can bring the action? Restricted to contemporaneous neighborsj. Private nuisance action cannot be brought by purchases or real

property against the sellercaveat emptor applies (should haveinspected)

3. Basis of Liability A private nuisance action must have a BASIS of liability*distinguish trespass which must be intentional.no negligent trespassPhiladelphia Electric Company v. Hercules, Inc.The Property in question is the CHESTER SITEIt 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 andinvestigate the condition of the property.Hercules became the successor of PICCO, assuming all debts, obligations andliabilities.

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This action is brought against Hercules by PECO for damages andinjunction requiring D to abate any further pollution.In 1880 DER discovered that resinous materials similar to those once producedby 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 tonuisance, and whether Hercules remains liable for the nuisance even aftervacating the land.

To whom Hercules may be liable?Whether the purchaser of a real property can recover from the seller on aprivate nuisance theory for conditions existing on the very land transferred, andthereby to circumvent limitations on vendor liability inherent in the rule ofcaveat emptor.

Rule of Law:

A subsequent bona fide purchaser of land cannot claimprivate nuisance against a previous owner for damage done to theland.A Plaintiff cannot claim a tort action for public nuisance against aDefendant unless the Plaintiff can claim particular damagessuffered due to an interference with a public right.

The Restatement [Restatement (Second) of Torts, 821D] definesa

private nuisance as "a nontrespassory invasion of another'sinterest in the

private use and enjoyment of land."

For this case, the court assumes that Defendant is liable for aprivate nuisance, with the crucial question being to whom they areliable.

To recover on a private nuisance theory, plaintiff must show therewas a breach of duty. In this case, the duty Defendant owed wasto neighbors, not the Plaintiff purchaser. To allow Plaintiff torecover on a private nuisance theory would circumvent the rule ofcaveat emptor.

Neighbors unlike purchasers of land upon which nuisance exists, have noopportunity to protect themselves through inspection and negotiation.

Rest. Section 821C(2): In order to recover damages in an individual action for apublic nuisance, one must have suffered harm of a kind different from that suffered

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

The Restatement [Restatement (Second) of Torts, 821B(1)]defines a

public nuisance as "an unreasonable interference with a rightcommon tothe general public."A public nuisance is a criminal offense, consisting of aninterference with the rights of the community at large. However,courts have allowed tort actions for a public nuisance when theplaintiff suffers a particular damage.Plaintiff argues that the expense it incurred in cleaning up thepollutants is a particular damage. However, the harm common tothe general public in this case was the public right to clean water.

Therefore, Plaintiff lacks standing to claim indemnity or injunctiverelief

for a public nuisance.

Morgan v. High Penn Oil-Important

An intentional private nuisance occurs when a person either acts for the purposeof unreasonably interfering with anothers enjoyment of their land or knowsthat 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 ones

use and enjoyment of their land if his conduct is unreasonable under thecircumstances.

It occurs when the person knows that the nuisance is resulting from hisconduct

o Regardless of the care and skill exercised to prevent the injury.

Unintentional: A person may be liable for an unintentional invasion when hisconduct is negligent, reckless or ultrahazardous.

Carpenter v. The Double R Cattle Company, Inc.o 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 theharm is outweighed by the utility of the conduct, yet the harm is seriousand the payment is feasible without forcing discontinuation of the business.

The jury and trial court made findings, concluding that the feedlot did not constitutea nuisance.

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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 whenthe gravity of harm is outweighed by the utility of the conduct, so long as the harmis serious and the payment of damages is feasible, without forcing the business todiscontinue.

Issue. Did the trial court err by not giving a jury instruction based on the newsubsection 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, refusingto close down a large cement plant even though it creates a nuisance, but allowingneighbors to recover present and future damages created by the nuisance.

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

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

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a. Negligence D failed to exercise reasonable care to avoid the interferenceb. Strict Liability The activity poses extreme danger to Ps use and

enjoyment of his property..abnormally dangerous activitiesc. Intentional Ds conduct is intentional if:

o

D meantto invade the protected interest,purpose (rare)o D knew it wassubstantially 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 ifno basis even if conduct substantial and unreasonable interference

4. Balancing Test Balancing the Equities1. Weighs gravity of harm v. utility of Ds conduct for competing uses2.Locality of the conduct is important factor3. Character and extent of harm considered (ex-severe, physical harm bad)

5. Nuisance per se = nuisance at all times regardless of location

Nuisance per accidens = in fact; depends on circumstances6. Value of the Ds activity to the communitya. Majority/Restatement allows a finding of a nuisance even when the utility

outweighs the harm if:o Harm is serious AND

o Payment of damages is feasible w/out shutting down business

b. Minority view NO nuisance found if utility outweighs harm7. Hypersensitivity NOT allowed; objective measure for harm suffered

o (already know this but review)

8. Interference with support of Land strict liability if land subsides in its naturalcondition.negligent standard if subsides b/c of artificial condition

9. Zoning If an area is zoned for an activity then conducting that activity cannotbe a nuisancesolely b/c of its location (b/c deemed suitable)

-but still may be a nuisance if operated in an unreasonable manner10. 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 nuisance11. Note: a person can obtain the right to pollute by prescription (10 yrs. in MS)

12. Contributory Negligence IS a defense if basis of liability is negligence, butNOT if basis is intentional13. Damages

a. Injunction court order commanding or preventing an actiono Old rule If P could show that Ds conduct caused a private nuisance

and substantial damage, an injunction was granted.

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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

o 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 solutionb. Money Damages

o Normal If court determines P has suffered substantial damages, will

award damages for decreased enjoyment of property up to present timeDamage is substantial if:1. Offensive to a person ofordinary sensibilities2. Anyproperty damage is substantial

o Permanent damages Damage for decreased value of property, both

present and future, when injunction is not awarded b/c utility outweighsharm (Boomer Rule)

i. Essentially gives the D a right ofinverse condemnation in

property by creating an easement paying after-the-facti. The Boomer cement company has the right to take private

property for their use (eminent domain). The taking must be for public use? Toyota?

Inverse condemnation is putting down the plant first, and thengetting 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.

DEFAMATIONtwo torts Libel (written) and Slander (oral)

A. 2 Part Test1. Interest Protected? Right of individual not to have their reputation damaged by

false publications or false statements.a. No cause of action if telling truth

2. Basis of Liability?a. Private Plaintiffs intentional or negligent conduct b. Public Plaintiffs malicious conduct defined by Supreme Court

Prima Facie Case (what P must prove) Publication offalse and defamatory statementsof fact that damaged his reputation.made people think less of individual

Test: Whether publication is defamatory when read and construed in the sense in whichto 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

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*It is enough if the communication could be defamatory to SOME people (not necessarilyright-minded people)

Libel per seany 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 substantiallytrue. Jurisdictions are split on who has the burden of proof to prove the truth ofstatements 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 provetruth ofthat particular statement alleged. OK if minor falsities in Ds statement.

Burden of proof:

1. At common law, there was a presumption of falsity regarding the defamatorystatements. Burden was on D to plead and prove truth as an affirmative defense.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 actionagainst a media defendant for speech ofpublic concern.

3. In Mississippi, burden is on P to prove falsity of the statements regardless4. The truth can be pleaded as an affirmative defense and then the P. would have the

burden of proof to show the claim was true/false?5. Sometimes the P. can have the burden of proof to prove that the claim was false

(what is the situation when this happen?)

Who can be defamed? (note 2 pg 878)

Any livingperson (defamation actions are NOTprotected by survival statutes)

Defamed Groups:a) Very Large NO action for any member (ex- all lawyers)b) Small ANY member has action so long as ALL were referred to (the 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 ofreputation but CAN bring action if publication damages its business character. For

instance defamation action can be brought for honesty, credit efficiency or otherbusiness or moral character.

Governmental institution should not enjoy a right to suein 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 reasonablyinfer who was being defamed (e.g., language could refer to P by title, etc.).

NOTE: Defamatory statement must be a false statement offact, not of opinion.

Restatement of Tort Section 564A:

One who publishes defamatory matter concerning a group or class of persons issubject to liability to an individual member of I, if, but only if:

a. The group or class is so small that the matter can reasonably be under stoodto refer to the member, or

b. The circumstances of publication reasonably give rise to the conclusion thatthere is particular reference to the member.

The numerical approach to group libel: The group generally successful in pursuing grouplibel actions number 25 or less.

Libel vs. Slander: The difference is that in slander (NOT slander per se) P has to provethe damage done to his reputation caused him to sustain special damages pecuniarydamages.. Something of monetary value

Libel per se 2 Meanings1) printed or written comment that is without question defamatory;

reasonable minds cant differ. If not, goes to jury. OR2) 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 factsin order to appreciate its defamatory implication

Plaintiff must allege and proof the extrinsic facts in order to have a cause ofaction.

Restatement of Tort Section 568:Libel: consists of publication of defamatory matter by written or printed wordsor by its embodiment in physical form, or by any other form of communication

which has the potentially harmful qualities characteristic of written or printedwords.Slander: consists of the publication of defamatory matter by spoken words,transitory gestures, or by any form of communication other than those stated inSubsection (1).

Slander per se a cause that is actionable w/o proof of special damages: 4 Types1. Imputations of Major Crime crime of moral turpitude2. Loathsome Disease little recognized. Advancement of science and thecurrent social perception about such slander has made it not sufficient to beactionable 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 3rd party2. False statement of fact (not opinion) NOT substantially true

3. Defamatory damages Ps reputation4. About P explicitly or colloquium/innuendo (reasonablyinferred)

Plain Slanderspoken defamation which does NOT fall into previous 4 categoriesElements: * P must prove special damages!!

Publicationa communication of the defamatory material to another personFalse statement of fact (not opinion)DefamatoryAbout PSpecial Damages pecuniary loss.something of monetary value

If they can prove special damages, they can then recover for those and also for otherthings such as damages to reputation or emotional distress.

a. The special damages must have been the natural,

immediate, and legal consequence of the words.

7. What constitute Special Damages?a. Whenever a person is prevented by the slander from

receiving that which would otherwise be conferred uponhim, though gratuitously, it is sufficient

i. Loss of marriage, loss of hospitable gratuitousentertainment, preventing a servant or bailifffrom getting a place, the loss of customers by atradesman

NOTE: Ps recovery not limited to special damages in slander. Additionaldamages 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 necessary2. Slander special damages must be proven

Broadcast defamation libel or slander?a. Courts have treated as libel b/c of potential to reach so many peopleb. Many states have statutes that make this sort of defamation slander

NOTE: In determining whether particular communication is libel or slander, courtswill askhow many people did it reach? Libel will reach more people.

Publicationcommunication of defamatory statement to a 3rd Partyi. may either be done intentionally OR negligently

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ii. providing means for which comment was publishediii. 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 ifno one else overhears them.

Communication to a 3rd party is considered publication if it is done intentionally or by a negligentact. Restatement of Tort 577.

o No publication when words are spoken directly to a plaintiff with no reason to suppose

that anyone can overhear, but they are in fact overheard by a concealed listener.

o There is publication when Defendant speaks so loud that the Defendant can expect that

someone may overhear.o There is no publication when a defendant sent defamatory matter in a sealed letter and it

is unexpectedly opened and read by a third persono

Repetition of defamatory statements: A party need NOT create publicationParty who repeats defamatory statements is also liable for defamation (if reasonablyanticipated) even if(1) they credit the original source OR(2) they disclaim thestatements by saying they do not believe them to be true.

Internet Privilege: Internet service providers are protected by Congressional Act so longas they did not provide the defamatory information (create it). b/c courts want topromote commerce

Statute of Limitations with regard to defamation (1 year including MS):

Single publication rule cause of action accrues at the time of originalpublication from which the S.O.L. begins to run (generally one year)

i. Discovery rule applies when P knew or could have discovered withreasonable 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. retract

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