Torts - Turley - Fall 2009_001

8/11/2019 Torts - Turley - Fall 2009_001

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Torts Outline Professor Turley

I.I. SSCHOOLSCHOOLSOFOFTTHOUGHTHOUGHTA. Formalism

1. Code system, consisting of canons, case-made, judge-made rules

2. Rules are outcome determinative; goal- prevent bias/ subjectivity of judges3. Fierce notion of judicial neutrality/deference; court should not engage in determining

hat la should be rather than hat it is; leave lama!ing to legislative branchB. "egal Realism- replaced Formalism in the #orts Revolution

1. Rejection of formalism; acceptance of the indeterminacy of the la2. Karl Llewellynfound judges selected canons and pre-determined outcome $hidden bias%;

false neutralitya& 'egan policy goal of creating a stable rule; consider broader implicationsb& consider hat reasonable person ould have done and the goal of achievement

C. (ormative1. )oal- determine hat is norm of society, hat is morally right/rong in society, usually

decided by juryD. Hobbes- "eviathan guarantees recourse/ remedy; corrective justice- la must ma!e rongs

right vs& efficiency of C"* $producing most efficient manner of achieving ealthma+imiation rather than righting of rongs%

E. "oc!ean1. Labor Theory .n beginning, all as held in common& #hen evolved into private

property $mi+ing of seat/labor conversion of common property into private property%2. )vmt does not create priv& property- )od created private property; gvmt may not

redistribute ealth3. Lockes Proiso 0ne must leave as good and enough for others $used by Rals to

justify redistribution if e+treme concentration of ealth occurs b/c it is defeating )od1s

plan of alloing man to produce through enterprise%F. 2tilitarianism

1. gvmt must protect individuals, not just mar!et2. !entha"- #oal of #"t- achieve the greatest good for greatest number; invest in social

actiontremendous productivity $industrial revolution%; #"t $ en#ineer of society

G. Feminism1. 3atherine %acKinnon- la ritten by middle-aged hite men- inherent patriarcha bias2. !urispathic v. "urisgenerative

a& &uris'athic- basis of la is combative, male model; layer is !night; ero sum game-only one person ins/ gains

b& 'etter&uris#eneratie(judges evaluate merit on both sides and shape an e4uitable

decision3. 'ender- should have duty to perform lo-cost rescues; 5osner agrees, but from an

efficiency standpoint#. Critical "egal *tudies

1. Goal-"udges shoud active$ %or& to brea& do%n cass barriers; help marginalied2. *ometimes favored judicial activism, courts should be more socially active3. )uncanKenne*y(peeled onion of 'lac!stone1s Commentaries

a& Favored de-construction of 6legal terms1b& 7ealth re-distribution is important $+awls%

1


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I. C"* counted by 8udicial Restraint1. Goal- deference to the legislature; judges are not elected and are counter-majoritarian2. %a*isonian Syste"

a& #ri-part gvmt provides chec!s balancesb& Factions political pressure majority rule $elimination of factions%

c& .f left to judges- no faction pressure relief, too much control given to individual

3. Hart an* Sachs- the system or!s best hen courts leave it to legislature to fill gaps/ambiguous legislation; Courts must stay in line /the 9adisonian system

!. !ut see( Public Choice %oe"enta& :art and *achs vie is rong;gvmt often favors minorit$ opinionsrather than majority

principles; deals/gaps Congress ma!ing decisions to detriment of publicb& %ancur Olson

i. disagrees ith 9adison1s vie- collective actionsma groups are actua$ morepo%erfuthan big groups b/c small groups have concentrated interest

ii. vs& majority groups, that have dispersed interests and more free ridersc& ,asterbrook

i. Deaism- gaps in legislation are bought and sold li!e a mar!et

ii. Court must apply las e+actly as ritten; do (0# gap fill limited judicial roled& &onathan %acey- agreed /public choice criticism, but not the result

i. 0 gap fill; ta!e Congress at its ord and enforce the public-regarding purposeof legislation; Congress can fi+ it if rong

ii. 9adisonian democracy or!s best hen open and deliberative process; this isachieved by filling gaps to public regarding purpose, forcing Congress to amend outin open to continue deal-ma!ing

'. He#el1. Personality theory of 'ro'erty- the sub"ective vaue of an ob"ect to an individua is not

recogni(ed b$ the a%) disconnect2. the only ay to understand property is to understand its relationship to the person

*. "a and


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b& Har*ins Tra#e*y of the co""ons- ealth ma+imiing farmers ill continue to addcos to shared land /finite amt& of grass even if doing so ill cause the land to stopproducing food; result- everyone starves

i. *olution> .ntroduce private property creates incentive to !eep resource healthy

-. Pi#oua& on$ egisate %hen the mar&et fais b$ ao%ing something contrar$ to the ong)term

needs of societ$b&


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i. Rst& @ ===- intentional e+ercise of control over chattel, hich seriously interferes/D1s right to control

ii. Moore v. Regents of Univ. Cal&- organ removed from body, used for science $G%&

2sually put in trash so (0 conversion&

+UL, custom of chattel disposal effects determination of conversion

5ossible efenses

o slippery slope

o slippery slope- if you say removal of tissue is conversion, huge H of issues

o bright light argument- say this is not priv& property or slippery slope

o floodgates- if tissue is priv& property, thousands of patients hose tissue as

used in researchc& Physical Har"1 ),F,.S,S to -ntentional Torts

i. CC0(*


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o 9ay not escalate the encounter by increasing the violence&

+ule Jou do not have to retreat&

o 'ut may not retaliate once danger is passed& 'attered omen syndrome not

accepted- vieed as retaliation&

+ule1 %istaken self(*efense "ust be reasonable&

o Courvoisier v. Raymond- I fending off intruders, confuses cop /intruderand shoots

+ule Reasonable, mista!en belief of self defense is reasonable&

Krd party privilege to defend others under same conditions and by same means as

one may defend self&iv.


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o )vmt may alays use this argument, but gvmt has aived much of its

immunity i&e& 2&*& gvmt compensates ar-time victims

o 9ost states have restricted it to !eep ppl from claiming it

d& ,"otional;)i#nitary Har"1 0ssaulti. R*# @ =A 0ssault( intent to cause reasonable a''rehension of i""inent

battery

(eed .ntention N Bct

ii. I must have intent to cause offensive contact or imminent apprehension $sa%areness of threat%

iii. +ule1 %ere wor*s are not enou#h to constitute assault

e& ,"otional;)i#nitary Har"1 OFF,.S-ority rule( Fa"ily "e"bers2 if 'resent2 "ay recoer: 9r* 'arties

can recoer2 but ?sli#ht@ bo*ily in>ury; 'hysical contact is re5uire*6

iv. %ishan*lin# a cor'se- subject to liability for ..


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2. (let#her v. Rylands - I1s reservoir lea!ed, damaging D1s coal mine

a& +ule I is strictly liable regardless of intent/negligence&3. Rylands / +ule *trict liability applies to damage caused by activities/items originating

from I1s property $i&e& cattle, privy, al!aline or!s, ater reservoirs at the time%a&Posner (egligence is the most effective system; strict liability forces cost-

internaliation, leaving it to the mar!et to dispose of inefficient activities

b&DuncanKennedy- here, class issue, courts are protecting the nobility,. Rylands 0 +ule1 +ylan*s is strictly liable b;c non(natural use$creation of reservoir%&

.f natural use $mine coal, ater percolates through to mine belo%- not liable&a& efense only if act of god causes the damageb& U.S. uic!ly rejectedhaving a dominant system of strict liability

-. Bro-n v. Collins- horse startles, brea!s lamp post

a& +ule- *" not applicable b/c horses common and I used reasonable careb& .f 2&*& had applied Rylands test during .ndust& Rev& ould have cut groth

dramatically. Po-ell v. (all- spar!s from steam engine cause fire on D1s property

a& +ule1 Ahen statute clearly states liability2 co""on(law su''lante*(.,GL-G,.C, P,+ S,6

b& 9ost statutes set a minimum standard of care; compliance /doesn1t mean you1rereasonable/ not liable& 9ay be found negligent per se, but this doesn1t ensure liability&9ust still find unreasonableness as legal cause of injury& :oever, reasonablenessnever plays a role in strict liability&

4. Hol"es- p& AOP, LL- importance of an objective standardB. *trict "iability and (egligence 9odern #imes

1. .e#li#ence$4uestion of degree% s6 Strict Liability$Chec! social attitude toardconduct; thenliable or not%&

2. !tone v. Bolton - D *tone hit by cric!et ball from cric!et ground close to public road& I

found negligent&a& +ule 0ne is negligent if there as a reasonably foreseeable ris! of severe injury /no

effort to mitigate&3. Bolton / I prevails; +ule .n negligence, consider 4uestion of degree- A& remoteness

of ris! of injury and =& seriousness of conse4uences& "iability based on negligence-reasonable standard of care&a& & 3ennedy ould say la is favoring upper class&b& 5roper rule for sports teams $negligence v& *"%> #urley- *", stadiums are CCB $most

information, insurance, internaliation of cost, gives business incentive to be safer,forces businesses to bear the cost of their activities or be forced out%

,. Hammontree v. ,enner- epileptic driver crashes into store, injuring D

a& +ule (o negligence if ta!ing due care and suddenly overcome by medical condition&b& +ule *" should apply to unforeseeable instances&

I5.I5. ..,GL-G,.C,,GL-G,.C,A. -ntro*uction

1. #urley etermination of the 6reasonable person1 standard is relative to the situation,culture, society, etc& (0# just duty&

2.


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c& sufficient causa connectionbt the negligent conduct and D1s injuryd&Actua harmthat is measureable/compensablee& andQ /inscope of iabiit$

i. i&e& pro+imate cause- not necessary though3. R*# @ =E= .e#li#ence- conduct falling belo the standard established by la for the

protection of others against unreasonable ris! of harm

a& #he test is objectiveb& Care must be reasonable, not perfect

B. The +easonable Person1. 3noledge, ectie ar#6@ no eBcuse: "ust still "eet

ob>ectie stan*ar* ?or eeryone woul* clai" to be *u"b@6i. Hol"es- the la uses an objective standard& #he la sees you not as )od sees you&

3. Bctivities Re4uiring *!illa& 5erforming a licensed/ special s!ill activity mitigates consideration of personal

attributes $age, impairments, etc&%, holding the person to the standard of that class&b& 1aniels v. *vans- A yr& D old !illed hen driving a motorcycle

i. +ule1 -f 'artici'atin# in an a*ult actiity2 hel* to an a*ult stan*ar* of care6,. Bge

a& Childreni. .f adult activity, held to reasonable, adult standard $aniels%&

ii. 0therise, children ho commit negligent acts are held to a subjective standard,

considering the age, maturity, and intelligence of the child& O $no capacity forreasonability%; O ? L/AA $presumption of no capacity%; 'y AA, presumption ofcapacity; Bfter AO, considered to have capacity&

b& +ule1 License* 0ctiity( %UST "eet reasonable 'erson stan*ar*6i. Roberts v. Ring- LL yr& old man /sight/hearing issues hits L yr& old

-. 5hysiciansa& %a>ority- Reasonable person customary practice of reasonably ell-4ualified

practitioner, licensed or not&b& %inority- reasonable person - - - N local conditions

. 5hysical Characteristics/ isabilitiesa& +ule 5ublic areas must be made safe for all; foreseeability re4uires anticipation of

blindness, height differences, and even into+ication $public policy incentive%&b& (let#her v. City of %berdeen- City leaves unfenced ditch by sideal!, blind D falls,

injured4. 9ental Capacity

a& +ule1 -nsanity is a *efense to ne#li#ence O.L/ when su**en6b& Breunig v. %meri#an (amily Ins&- I has history of mental illness, thin!s )od is

directing her car, crashes into Dc& 6uestion to as&7 shoud 8 have &no%n or ta&en preventative steps9

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C. Calculus of +isk1. General1

a& #o levelsi. Commonsense version of negligence

ii.


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a& Cooley v. Publi# !ervi#e Co&- ire falls, e+plosive sound, oman suffers neuroses

i. +ule .f no better option e+ists, I ill not be held liable for choosing the safestoption&

b& %ndre-s v. United %irlines- bag falls from overhead compartment, injuring

Bndres& Court- injury as foreseeable, and 2nited could have installed nets at a locost&

i. +ule1 Co""on carriers are hel* to a hi#her stan*ar*2 so they can be hel*liable for less ne#li#ence6

ii. Post +e"e*ial +e'air +uleyou cannot use the fact that ) made a safety reformagainst the ). %ut( you can say that other companies are using the safer design&

,. Conduct in


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iii. even if not negligent per se, not conclusive, as a 6reasonable person1 may bere4uired to ta!e greater precautions

iv. Bllos bridge for jury to go straight to causationb& Public Choice School- issues ith statutes being gap-filled by judges

i. Feres octrine- military personnel are not alloed to sue the federal government fordamages for injury; this as created by the *up& Ct& hen it as gap-filling the

F#CB


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2. 'asic


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3. 43 RR v. $rimstad- husband falls in ater off boat, D can1t find life vest, claims but-for

a& +ule1 S'eculatie but(for causation is not enou#h to show ne#li#ence&,. 5u#ho-i#2 v. United !tates- oman prescribed ma+ =+ recommended dosage fatal

diseasea& Rule

-. +ST 7 8 'urden of proof is on D to sho harm is attributable to I&

a& 9edical situations, consider aubert $majority%, Frye $minority%&. $* v. ,oiner- D, electrician has cancer; splashed /carcinogenic coolant, but also smo!er

a& = *tandardsi. Frye Stan*ar*- you can only use e+pert testimony that is generally acceptable

$published, recognied% $higher bar than aubert%& 5ro-jury&ii. )aubert Stan*ar*- rules of evidence don1t re4uire scrutiny of e+pert testimony, but

judges should scrutinie testimony to prevent bad science&

Court is the gate!eeper, determining if testimony is relevant and reliable&

5ro-judge- allos judge ability to !ill a case before getting to the jury&

b& )< brought bac! a general aubert standard, here judges play a more aggressive role,allos judge ability to ma!e a legal and factual determination regarding )


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C. ProBi"ate ?Le#al@ Cause( Physical -n>ury1. )eneral

a& 5ro+imate Cause- cho!e point of causation& 7as 6duty1&i. 'ut duty analysis still primary in common carriers, respondeat sup&, no duty to

rescue rule&b& Ryan v. 43 RR- I negligently sets fire to on property, number of other houses

burnedi. +ule1 E is liable for 're*ictable *a"a#es2 .OT res'onsible for re"ote *a"a#es6

2nforeeable/Remote/ .ndirect Conse4uencesc& Ris! 5rinciple- I1s liability limited to foreseeable conse4uences, persons /in one of

danger, ris! to a class of hich D is member $not liable for harm to unanticipatedclass%&i. Palsgraft v. )ong Island RR- man tries to board leaving train, = employees help,

man drops pac!age, hich e+ploded, being full of fireor!s

+ule 7hen the harm is not foreseeable because it is too remote or is outside of

the one of danger, no liability& Cardoo- more limited basis for liability&o Bndres- dissent- ants ider lens / substantial impact test- everyone is in

the one of danger if substantially impacted by the negligence&

one of )an#er Test .s D inside one of danger as seen by I>

ii. agon Mound- ship spilled oil, carried by tide to Ds harf, D told not flammable,

elding causes fire- damage to harf

+ule1 ProBi"ate cause nee*s reasonable an* foreseeable in>ury& 0verrules

5olemis; allos court tighter control over cases, throing out more ifunforeseeable

d& irect Conse4uences Rule $minority- hindsight%

i. Bs long as injury is not too remote and there is a direct causal lin!, even ifunforeseeable, I can be liable&ii. In re Polemis- charter boat hired negligent or!ers ho started fire by dropping

board

+ule1 -f *irect causal link btw ne#li#ence an* the tort2 liable re#ar*less of

lack of foreseeability6

Turley- 5olemis jurisdictions are e+pansive on pro+imate cause- more cases go

to jury, rather than alloing judge to dismiss on basis of unforeseeability&e& @agon ound "urisdictions vs. oemis "urisdictions- even split in 2&*&

i. Aa#on %oun*; Car*oIo >uris*ictions( look at what is reasonably foreseeable2

cuttin# off liability when you woul* not hae reasonably foreseen cause of

in>ury .arrower( 3ardo$o- must as! if it was w'in the $one of danger?reasonably

foreseeable@

ii. Pole"is; 0n*rews >uris*ictions( "ore liberal2 is there a *irect connection btw

act of ne#li#ence an* the in>uryJ

Liable if you 'laye* a substantial role; ha* causal connection to in>ury6

f& Rescuersi. I is liable if rescuer reacts to peril appearing imminent /reasonable care&

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ii. agner v. International Ry&- 7agner falls off train, D goes searching for his

cousin and is injured

+ule1 reasonably foreseeable so"eone woul* co"e to ai* en*an#ere*

'erson: E hel* liable for 'roBi"ate causation6

iii.(ote- profession rescuers fall under firefighter rule limiting recovery heninjured in line of duty

g&


16/28

b& Family member; Krd party can recover if physical contact/impact3. 1illon v. )egg- 9other and daughter see sister !illed by car& *ister in one of danger, so

prevails, 9om does on appeal&a& Wone of danger test collapsed; impact not necessaryb& Brtificial- live # feed not considered near accident

5I.5I. BFF.R9B#.< 2#.


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i. Genera$) no dut$ to trespassers; no trespass intent re4uiredii.


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o Counter-

courts must protect marginalied citiens- i&e& the poor& )6 Kenne*y-

court must protect loer income ppl b/c legislature does not& %ancur Olson- 5ublic Choice- landlords have more poer in legislative

system, ill push legis& to further economic bottom line court

intervene %acey- rule on it to force legislature to change it

Pi#ou- leave it to mar!et>

o 5areto *uperior reached /this decision> (o, there is a lose

o 3aldor/:ic!s> Jes, society improved by decreasing breeding of crime

3. 5eople /2ni4ue .nfoa& +arasoff v. Regents of UC- grad student obsessed /girl, tells therapist plans to !ill

i. +ule 5eople in peculiar positions can have a duty to arn if obvious& *tandard ofcare> $for r&- average doctor%

ii. .n general, #arasoff can e+tend to doctors, media, layers, but not religious figures&

5II.5II. CCO.T+-!UTO+/O.T+-!UTO+/..,GL-G,.C,,GL-G,.C,

A. Common la rule- 2dirty hands1- barred from any recovery if even only 56 contributorilynegligent

B. Contributory negligence jurisdictions attempted to mediate the unfairness of the rule /the"ast Clear Chance octrine1. Hel'less 'eril- even if D is contrib& neg&, I is still responsible if they had a last clear

chance to prevent the peril b/c they should have !non of D1s helpless state2. -nattentie D- common la re4uires I have actual !noledge that D as in peril

C. 9ost states ent to comparative negligence1. PU+, CO%P0+0T-ury to assi#n res'onsibility to

either 'arty: take assi#ne* to D an* subtract it fro" the awar*

2. P0+T-0L CO%P0+0T-


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1. )enerala& Common la imposes *" for any ild animals in your 'ossession&

i. 7olves most common ild pet; illegal pet in all VM states; olf mi+ also illegal&ii. 5ossession>

dominion and control

oes it have animus rivertendi> efinition of domesticated animal- habit of

return/ trained to come to you

0il/ gas often analogied to ild animal

iii. Certain breeds of dogs treated as vicious/ ild $even if !ept as a pet%

i&e& pitbulls, oberman pinchers

b& N Free !ite +ule; (0# one free bite- negligence( unless one !nows' should !now(then S4; even if 5st bite( owner held S4 if there were indicators animal was vicious

c& Woos- protected from *"- negligence standard in most statesd& )istress )a"a#e Feasant- if domesticated animal does damage to your property $i&e&

cattle crushes crops%, you may hold the animal until oner ma!es payment ofrestitution&

2. $ehrts v. Batteen- dog chained to pic!up, )ert as!s to pet, dog bites her in facea& +ule1 SL for wil* ani"als$olves, mon!eys, bears%&b& +ule1 .e#li#ence ?.OT SL@ for co""on *o"esticate* 'ets6 ,Bce'tion1 Unless

owner knows or has reason to know that the ani"al has abnor"ally *an#erous

'ro'ensities6

B. 2ltra-:aardous/ Bbnormally angerous Bctivities1. General

a& Bbnormally angerous balancing factors high deg& of ris!, li!elihood of harm,inability to eliminate ris! /care, e+tent to hich it1s not a common usage,inappropriateness in surroundings, value to communityi.9s!& 0oreseeable' highly significant ris! even w'reasonable care: 3ommon

usage:b& Rylands

i. Ori#inal +ule Conduct on land in non-natural use /escaping threat held to

*"&ii. %o*ern +ule (o longer necessary that conducted on land or escapes&

c& !"ano v. Perini Cor"&- Is constructing tunnel in 'roo!lyn using dynamite, damage

D1s car shop&i. +ule Reasonability/ intrusion irrelevant blasting is inherently ris!, held to *"

standard&ii. 5otential defense social utility outeighs costs; hold to negligence standard&

d& Indiana Harbor RR v. %meri#an Cyanamid- Cyanamid ships to+ic chemical, lea!,

RR charged for cleanupi. +ule ue care from RR ould have prevented spill, so negligence standard ma!esmore sense than *"&

ii. #urley 5osner sounds li!e Calabresi here, arguing homes near RR trac!s are CCB;#urley disagrees RR could charge more, double hulled cars, avoid certain rails&

e& .ntervention by Krd persons, animals, forces of nature does not bar *"&f& (o *" for harm caused to abnormally sensitive activity $i&e& min! farm%&g& efenses

i. D1s Bssumption of the ris!- bars recovery

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ii. Contrib& (egl&- (0# a defense to *"

'2# !noingly, unreasonably subjecting himself is a defense to *"

C. .U-S0.C,1. )eneral

a& oesn1t fit ell /in *"- more stand-alone&b& Form of action for harms that can be based on intentional conduct, neglig&, or *"&

2. 5rivate (uisancea& Priate nuisance- thing/activity thatsubstantia$ and unreasonably interferes /D1s

use and enjoyment of his land&b& Vogel v. $rant *le#tri#- cos on mil! farm not producing due to stray voltage

i. +ule (uisance may be either physical or non-trespassory interference&c& (ontainbleu Hotel- I hotel constructing addition hose shado ould bloc! light/air

to D1s property in *outh 'each, F"&i. +ule1 0ccess to li#ht;air is .OT a lawful ri#ht&

ii. Bncient lights concept unanimously repudiated in 2&*&- idea that you do have somepossession of light/access; idea of your property as a cylinder going up to god&

d& General +ule1 you cannot clai" aesthetics as a nuisance$i&e& hot pin! house%&

e& +ule *pite fences are a nuisance if holly malicious $must serve no useful purpose%&f& #a!ings clause- gvmt cannot ta!e your property /o compensation related to oning

las $diminishing property value%i. +en5uistmajority- more than occupation/ eminent domain, should entail any

diminishment of value

#a!ings revolution- massive oning las being struc! don;stoppedb/c

01Connor starting refusing to accept cases

*calia- framers !ne of nuisance but didn1t mention it hen riting ta!ings

clause; assumption you can prohibit a nuisance /o compensationii.


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b& 9ust be aproduct: not a service

i. Bmbiguous e+&- tainted blood; service or product> hosp& says service, but bills youfor blood, hich they received for free& Courts say service&

c& :as product been substantially altered, and does D !no about it>d& esign and arning defects ta!e an initial application of negligence standard, applying

hat is reasonably foreseeable& Bfter that, *" !ic!s in&C. 5roduct efects

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1. Generala& 5roducts liability can come in negligence, strict liability, or arrantyb& K types of defect in product liability

i. manufacturing $rarely go to court, unless foreign object defect%ii. design

iii. arning $reasonableness standard under both restatements%

c& (ote Bpply all K tests belo on the e+amX

d& +ST 7 M0( %a>ority +ule O+)-.0+/ 3Consu"er ,B'ectations4 SLi. R*# @ OM=B

0ne %ho ses an$ product in a defective condition unreasonab$ dangerousto

the user or consumer or to his property issub"ect to iabiit$for physical harmthereby caused to the ultimate user or consumer, or to his property, if

o the seller is engaged in the business of selling such a product, B(o it is e+pected to and does reach the user or consumer /o substantial change

in the condition in hich it is sold

#he rule stated in *ubsection $i% a''lies althou#h

o the seller has e+ercised all possible care in the preparation and sale of his

product, ando the user or consumer has not bought the product from or entered into any

contractual relation /the seller $absence of privity%

)oal- consumer protection purpose; anyone in *0C is potentially liable; cannot

arn aay a defectii. Stan*ar* Or*inary 3Consu"ers ,B'ectations

'asic Re4uirements

o Appies to products on$: not services

)rey areas

blood service

Birplanes

-#ransportation is a service, '2#-#he manufacturer of the planeproduct

o 9ust have a commercia suppier, and all liable

9anufacturers, retailers, assemblers, etc&

(0#- garage sale person

o 5roduct cannot be substantia$ atered


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i. Ris!-2tility #est for efective esign

e+pansion of consumer e+pectation

Can be appied as an aternative to consumer e;pectation %hen the consumer

doesnt &no% the e;pectation $high tech& products%f& +estate"ent 9r* 7 ( %inority +ule

i. R## @ = Categories of 5roduct efects 9inority

Categories of 5roduct efects 9anufacturing, efective esign $if a

reasonable alternative design e+ists%, and arning defecto 0 2bH shifts attention: increases burden on is forced to come up

%+an alternative design easy if there already is an alternative design out there; if not- can really

increase litigation costso 9uch more hostile standard- forces D to come up / reas& alternative design

compared to R*# @ OM=B, here D just had to say current design itselfdangerous

2. 9anufacturing efects

a& R## 5roof of specific defect not re4uired hen incident is $A% a !ind that ordinarilyoccurs b/c of defect; $=% hen some portion of the injury can be traced to the defect&b& .ssue R." can only be applied to a *" standard, and here the local rule is negligence,

so R." is substituted /circumstantial evidence&c& !"eller v. !ears- house fire, D argues caused by fridge, e+perts differ as to cause

i. +ule Circumstantial evidence is permitted hen all other possible sources of theinjury have been reasonably shon to not be the cause&

d& 7arranty- hen you sell something, it comes /some !ind of arrantyi. .mplied arranty- minimum e+pectation as to the use/safety of the product

ii.


24/28

#he design pro+imately caused the injury it can1t be shon that the benefit of

the design outeighs the ris! $risk utility test%ii. R## too! the =nd pong and made it its rule& K options for products liability OM=$a%,

=-prongs, R##e& Subse5uent 3Pro*uct %o*ification4 +ule- usually not admissible evidence unless a

Krd party made the modification or modification directly altered the item that failed

f& )inegar v. %rmour- officer shot under arm, here bullet-proof vest didn1t coveri. +ule Consumer e+pectation test- ris! as open and obvious $not absolute defense%;

can1t subject manufacturer to *" for reasonable design esp& hen design chosen byD&

g& Halliday v. !turn, Ruger- K yr& old shot self in head /father1s gun; father ignored

safety arningsi. Rule Bbsent legislative intent, a consumer e+pectation test ill be applied to

normal handguns&,. 7arning efects

a& General/ Turleyi. Cannot arn aay a defect

ii. on1t have to arn every issue 'ut do have to %arn for the J%orst reasonabe person


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ii. +ule ,Bce'tion 5rescribed items here patient has a larger role in deciding to useand doctor has more silent role $i&e& only annual chec!-ups%&

iii. Sub(+ule FB regulations are the floor, don1t e+clude you from liability&iv. Turley 6Comment 31- (o *" for products of great social value


26/28

a& efamation re4uires $A% falsity; $=% unprivileged communication $publication%; $K%fault; $O% damages&

2. +ule Re4uires publicationa& .ntentional or negligent communication to a Krd personb& .ntentionally or unreasonably failing to remove defamatory material that he !nos to

e+hibited on his land/chattels

3. +ulesa& #ruth is an absolute defense&b& oes not apply to deceased individuals&c& Corporations and businesses can be defamed&d& "arge groups are generally not able to maintain defamation actions but small groups

may be successful $note 4eiman9Mar#uscase%&

e& 0pinion is protected hen based on !non or stated facts $hoever, can be actionablehen based on undisclosed or personally !non facts%&i. 5arody and humor are protected as a form of opinion&

ii. il&o- v. (orbes- Forbes publishes article about businessman, ho 6plays

fast/loose1

+ule 0pinion not defamatory& +ule Jou must sho it has harmed your reputation&

iii. %uvil v. CB!$5roduct isparagement "ibel%- D sued C'* for segment about a

pesticide used by apple-groers lin!ed by a report to cancero +ule 7here media is clearly reaching an opinion, editorial opinion is

protected&,. 'oo!/ nespaper/ radio/ television broadcast single publication&-. .ntra-corporate communications are often not treated as publications& $variation%

$important defense against defamation; no publication- no defamation%a&


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i. 'ennedy- everything in court is privileged, but hat is stated outside of court can

be defamatoryb& Fair +e'ortin# Priile#e

i. ,a#obson #ase- iceroy #obacco Co& sued C'* for libel for a broadcast regarding

the manufacturers supposed targeting of youth in ads& 2sed gvm1t report&

+ule 5ublication of the defamatory matter is privileged if the report is

summaried in fair abridgment1?. 43 +imes v. !ullivan- elected officials in Blabama accused by (J #imes for

discriminatory practicesa& D, public official prohibited from recovering damages for a defamatory falsehood

related to his official conducti. +ule unless proven that the statement as made /actual malice $Bctual 9alice

*tandard- if spea!er had !noledge of the falsity or rec!less disregard for thefalsity%

ii. :igher defamation standard for public officialsiii. #urley 7hy> free speech is a chec! on governmental abuse

prevents chilling effect on media; protests ide open debate

public officials have a greater ability to defend themselves

b& Butts #ase- *ullivan e+tended to public figures

11. $ert2- negligence standard, not *", hen suing media

B. *lander v& "ibel1. Libel- the publication of defamatory matter by ritten or printed ords $or its

embodiment in physical form/ any other formQ%2. Slan*er- the publication of defamatory matter by spo!en ords, transitory gestures or by

any form of communication other than those stated in *ubsection $A%&3. Rule Radio/ #elevision "ibel

II.II. PP+-


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i. must be highly offensive to a reasonable person andii. actor had !noledge of or acted in rec!less disregard as to the falsity of the

publicied matter/ false lightb& .nfo must be falsec& (o e+ception for matters of legit& public interestd& +imes v. Hill- shoing of !non falsity or rec!less disregarding re4&

,. Bppropriation of D1s (ame/"i!enessa& Can be brought by estates of the deadb& 9any states re4uire shoing that appropriation done for business/ commercial purposec& 5u##hini #ase- human cannonball; :eld- AV sec& clip of him on # did amount to

stolen name/li!eness

Documents

Torts - Turley - Fall 2009_001