George Mason Torts II Outline

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DUTY

Overview

Generally, a person owes everyone else with whom he comes into contact a general duty of care that he will behave with the care that would be shown by a reasonable person. However, there are several situations in which D owes P less than this regular duty. Included are that D generally has no duty to take action to help P, D generally has no duty to avoid causing negligent mental suffering to P, and D generally has no duty to avoid causing pure economic loss to P, in the absence of physical injury.

Failure to Act: Rule

Regarding failure to act, in Osterland v. Hill P rented a canoe to a drunk who drowns. The court held he had no duty to give aid even when it would have cost the canoe renter almost nothing to help. Moreover, in H.R. Moch Co. v. Rensselaer the court held that the water company did not have a duty to supply enough water to put out a fire in a warehouse because they had not K’ed as such and had no duty to aid. EXCEPTIONS There are some exceptions to this rule in situations in which a business or university has a duty to rescue a person in peril if the instrumentality causing the injury is under the control of the owner. L.S Ayres v. Hicks (6 yr old caught in escalator). Additionally, when you have begun to render assistance and this dissuades others from helping the P, your actions convert from nonfeasance to misfeasance. Courts are more likely to say that you have assumed the duty in cases of misfeasance than cases of nonfeasance. And finally, there are some times where you have a duty to act to control others with whom you have a special relationship. For example, in J.S. and M.S. v. R.T.H., the wife of a pedophile who had reason to know of his pedophilia had a duty to take reasonable steps to prevent or warn potential victims. Additionally, in Tarasoff v. Regents of UC, a therapist was found to have a duty to exercise reasonable care in controlling the harmful conduct of a patient by warning others about his dangerous propensities.

Mental Suffering: Rule (Without Impact)

If D causes an actual physical impact to P, D is liable for the physical and mental consequences that naturally flow from it. Where there is no physical impact to P, courts tend to limit Ps right to recover for the mental suffering. In situations where there are no physical symptoms of the mental suffering, almost all courts deny recovery w/o physical impact except in situations with nursing homes handling corpses, and a few other situations. It is worth noting that while this is the majority rule, some states (including CA and NY) have abandoned this rule. When there is physical injury but no physical impact, the majority of courts allow recovery. For example, in Daley v. LaCroix, an explosion occurred on P’s property because of an accident with D’s car. P was allowed to recover even though there was no physical impact to the P.

Mental Suffering: Rule (Third Persons)

If P suffers emotional suffering based on fear or grief about danger to third persons, courts are split. They recognize the need to prevent open ended liability, but in some cases are willing to allow recovery based on "zone of danger", "close relatives" or "foreseeable victims." The majority of states allow recovery for distress caused by injuries to a 3^rd party if P was in the zone of danger. Additionally, a minority of states say that if P observes the injury to X, X is a close relative, and P suffers severe emotional distress, she may recover. Thing v. Lachusa (parent could not recover because she did not observe the injury to her child).

Unborn Children: Rule

The common law view was that no duty of care was owed to an unborn child. For instance, in Endresz v. Friedberg the court said that parents of a stillborn child could not bring a wrongful death action. However, courts are split about this and some courts will allow wrongful death actions for unborn children. By contrast, if the child is born alive almost all courts allow recovery.

Privity of K: Rule

Generally, a person who is not a party to a K cannot recover damages in tort resulting from the breach of a K, unless the K party undertook a public duty to act. For example, in Winterbottom v. Wright, a coach driver sued the manufacturer of the coach for injuries when the coach broke but there was no duty because there was no privity. This rule has slowly been relaxed in American courts carving out exceptions. For example, in MacPherson v. Buick, the court got rid of the privity requirement in products liability cases saying that a manufacturer owes a duty to remote purchasers if they are foreseeable.

Pure Economic Loss: Rule

The traditional rule, out of fear of open ended liability, was that when D only causes pure economic loss to P, P can’t recover without actual injury to his person or property. In Louisiana v. M/V Testbank, the court found that the fisherman affected by an accident that closed the fishing lanes could not recover damages. Modern courts have relaxed this no-liability rule and are most likely to give recovery when the injury to P was foreseeable, there are a relatively few number of Ps and D’s conduct was particularly blameworthy.

DAMAGES

Overview

There are three primary types of damages. Nominal damages are awarded to recognize that a legal injury has occurred but are not intended to compensate the injury. Compensatory damages are those that stem from the tortious act and include things like past pain, future pain, future medical expenses, loss of earning capacity, and permanent disability. And finally, punitive damages are intended to punish the tortfeasor and deter the actions in the future rather than directly compensate the victim for their injuries.

Personal Injury: Maximum Recovery Rule

The trial court is allowed to review damages and determine whether it exceeds the maximum amount which the jury could reasonably award. Anderson v. Sears. The court in Richardson v. Chapman said that damages are deemed excessive when they are so large that they shock the judicial conscience.

Personal Injury: Collateral Source Rule

At common law, a P is entitled to recover her out of pocket expenses even when they are reimbursed for those losses by a 3^rd party (e.g. insurance company). The purpose of this rule is to ensure that tortfeasors internalize the whole cost of their torts. In Montgomery Ward v. Anderson, a P injured when she fell shopping was allowed to receive full damages from D despite getting discounted medical services. Additionally, in Anheuser-Busch v. Starley, the court applies the collateral source rule saying that P is not precluded from suing even though he was fully compensated by his insurance. Despite these cases, the majority of states have modified the collateral source rule by statute saying that collateral source is admissible evidence without indicated to the jury what they should do with the information. A minority of courts say the award should be reduced by the amount of the collateral source.

Personal Injury: Mitigation

P has a duty to mitigate his damages, meaning that after the injury occurs he must take reasonable care to avoid aggravating the injury. P cannot recover for harm that could have been avoided by P taking this reasonable care. In Zimmerland v. Ausland, for instance, P suffered a knee injury b/c of D’s negligent driving. An expert testified that the injury would not have been permanent if P had gotten surgery. The court said there was a duty to mitigate his damages and said he couldn’t recover damages for injury that could have been lessoned by a reasonable treatment. The court said the factors to determing whether P was reasonable in failing to mitigate include 1) the risk involved in treatment, 2) the probability of treatment’s success, and 3) the money or effort required.

Punitive Damages

Punitive damages can be awarded to penalize D for particularly outrageous conduct. The purpose is to deter this behavior in the future and to punish D. In negligence, punitive damages are usually only awarded where D’s conduct was "reckless" or "willful and wanton". In Gryc v. Dayton-Hudson Corp, for instance, punitive damages when a child’s pajama’s caught fire were upheld because the court found that D’s using flammable fabrics was in reckless disregard to Ps safety and that reduction in danger was economically feasible. In State Farm Insurance v. Cambell, the court said that an award should not exceed a single digit ratio b/w punitive and compensatory damages. However, a jury can muck w/ this by giving more pain and suffering damages to reduce punitive. INSURANCE: There are strong public policy forces pushing to encourage obtaining insurance. Parties can purchase insurance to cover punitive damages. When they do this, the wrongdoer still suffers indirect punishment because their rates go up, they may lose their license, etc.

WRONGFUL DEATH & SURVIVAL

Overview

Most states have two types of statutes taking effect when a personal injury victim dies. Survival statutes govern whether a victim’s right of recovery continues after his death whereas wrongful death statutes govern the right of the victim’s survivors to recover.

Survival Statutes

The common law was that all rights and tort liabilities terminated upon death. Therefore if the victim died prior to suit, no cause of action could be brought. Because of this harsh rule, a MAJORITY of states have enacted survival statutes. This allows the estate to sue for those elements of damages that the victim himself could have sued for had he lived. These typically include pain and suffering, lost earnings prior to death, actual medical expenses, etc. In cases of instantaneous death, in many states there is no survival action because all of the damages are sustained after death. In Murphy v. Martin Oil, the court allowed a spouse to recover damages for loss of property and wages as well as pain and suffering of her husband between the time of his injury and his death.

Wrongful Death

A MAJORITY of states have wrongful death statutes that allow a defined group of people to recover for loss they have sustained because of the decedent’s death. Typically the spouse or children can recover. In Moragne v. State Marine Lines, for instance, a widow was allowed to sue the owner of a ship for her husband’s wrongful death. Moreover, in Selders v. Armentrout, the court ruled that loss of companionship could be part of the damage calculation when parents sued for the wrongful death of their three children. Typically intangibly rights such as defamation and intentional infliction of emotional distress do not survive beyond death.

NEGLIGENCE: DEFENSES

Contributory Negligence

At common law, the doctrine of contributory negligence applied. It said that if P was negligent and it contributed proximately to his injuries, then he was totally barred from recovery. In Haeg v. Sprague, the court applies the contributory negligence rule saying that it would rather apply comparative fault but that that change in law should be through legislation. This is similar to Butterfield v. Forrester, in which P was riding a horse and tripped over an obstruction in the road put there by D. Since P was riding too fast he could not recover. Contributory negligence cannot be used as a defense against intentional torts. A few (MINORITY) of states have kept the contributory negligence doctrine over comparative negligence.

Last Clear Chance: Limitation on Contrib. Neg.

The last clear chance doctrine limits the harsh effect of contributory negligence saying that if D had the last opportunity to prevent the harm, and P did not have the opportunity, D may still be liable because this wipes out the effect of P’s contributory negligence. The reasoning is that it is harder to say that P was the cause of the accident, D seems to have greater fault, and judges wanted a way to avoid applying the harsh contributory negligence rule. In Perin v. Nelson, P sued a cement truck for driving over his foot. The last clear chance doctrine applied because D knew that P, though negligent, couldn’t escape by using ordinary care. By contrast, D could have avoided the accident by exercising ordinary care. Therefore, P could recover. Similarly, in Davies v. Mann, P owned a mule that was run over by D’s wagon. Since D had the last clear chance to avoid the accident, he could not use P’s contributory negligence as a defense.

Comparative Negligence

A MAJORITY of states have adopted some form of comparative negligence standard which rejects the all-or-nothing approach of contributory negligence. Rather, it attempts to divide liability between P and D based on their relative degrees of fault. P is not barred from recovery for contributory negligence, but his recovery is reduced by a proportion equal to the ratio of his own negligence to total negligence. In Scott v. Alpha Beta Co, for instance, D was found 60% liable and P was found 40% liable when P wore slippers with a bad knee and slept on a wet floor at the grocery store. PURE SYSTEM In a pure comparative negligence system, P can recover for any percentage of D’s fault. 50% SYSTEM In 50% systems, P can only recover if Ds negligence was as great as D’s (50% rule) or greater (51% rule) than Ps. If P is more negligent than D or, in the case of the 50-50 states, if he is equal to or more negligent, then he is completely barred from recovery. In McIntyre v. Balentine, for instance, the court got rid of the last clear chance rule and adopted comparative fault saying that P’s damages are reduced by the percentage of his negligence, as long as Ps negligence does not exceed 49% of the fault. MULTIPLE Ds When there are multiple D’s, comparative negligence can be harder to apply. Some jurisdictions compare Ps fault to each D individually and P can only recover where his fault is less. In other jurisdictions, they compare Ps fault to all the D’s combined and if it is less, then P can recover from all of the Ds.

Assumption of Risk

P can assume the risk of certain harm when she voluntarily consents to take her chances that the harm will occur. Where such an assumption is shown, the common law says that P is completely barred from recovery. EXPRESS If P explicitly agrees in advance that P will not hold D liable, P has expressly assumed the risk of that harm. However, this does not typically work in products liability cases because of the public policy that manufacturers are best positioned to ensure that only safe products are put into the stream of commerce. In Winterstein v. Wilcom, a drag racer sued a racetrack owner when he hit a cylinder in the track. However, he expressly assumed the risk because he signed an agreement that was freely bargained for, did not involve public interest, and did not involve the waiver of a safety statute. IMPLIED Even if P never makes an actual agreement with D to assume the risk, P may assume certain risks through her conduct. Here, the assumption of risk is implied. Typically this requires showing that Ps actions demonstrated that she 1) knew of the risk and 2) voluntarily consented to bear the risk herself. EXCEPTIONS Express assumption of risk are not allowed if there is a public policy against the assumption of risk, as is the case in many products liability cases. Additionally, if P has no reasonable choice but to encounter the danger, P may not have assumed the risk. For example, in Rush v. Commercial Realty, P fell through a trapdoor in the bathroom and sued D even though she knew the trapdoor was there. The court said that D left P with no reasonable alternative and therefore P did not voluntarily accept the risk. DIFFERENT FROM CONTRIB. NEGL. When D’s conduct is reckless, contributory negligence is usually not a defense but assumption or risk typically is. Similarly, there are situations in which it is reasonable to assume the risk and not have contributory negligence (e.g. P, injured, gets ride in D’s car knowing it has bad brakes). According to the court in Blackburn v. Dorta, the doctrine of comparative negligence has subsumed to doctrine of implied assumption of risk. Rather, it just goes into the calculation of fault. However, express assumption of risk is still usually a defense.

Statute of Limitations

If P does not discover his injury until long after Ds negligent act occurred, the statute of limitations often won’t start until P discovered the injury. In Teeters v. Currey, a patient sued a doctor for negligently performing a tubal ligation when she finds out she is pregnant two years later. The court used the discovery rule saying that for medical malpractice, SOL does not accrue until the injured party discovers or should have discovered the injury. A MAJORITY of states have adopted this rule.

Immunities

Originally, the common law recognized an immunity between spouses and between parents and children. SPOUSAL IMMUNITY Regarding spouses, the common law would not allow suits by one spouse against the other for personal injury in tort because they were considered to be a single legal entity. The rationale was that allowing them to sue each other in tort would disrupt the harmony of the home, would lead to frivolous lawsuits, and had the potential to encourage collusion and fraud where insurance was involved. Moreover, it was thought that the injured spouse had adequate remedies in criminal law and divorce. Most states, however, have abolished this immunity. For example, in Freehe v. Freehe a husband was allowed to sue his wife for injuries caused by negligently maintaining the tractor abolishing the spousal immunity in that jurisdiction. PARENT/CHILD IMMUNITY Similarly, at common law there is an immunity that bars a child from bringing suit against his parents or vice versa. In Renko v. McLean, for instance, the court would not allow an 18 yr old daughter to sue her mother for injuries sustained in a car accident when she was 17. Many states have abolished this rule as well. The original rationale for this rule was the same as the rational for the spousal immunity plus the fact that it might make parents unwilling to drive their kids around. CHARITABLE IMMUNITY At common law, there was an immunity for charitable organizations, as well as some educational and religious ones. However, a MAJORITY of states have abolished this immunity and others have cut back on it, particularly where there is the opportunity to purchase liability insurance. In Abernathy v. Sisters of St. Mary’s, for instance, a patient was able to successfully sue a charitable hospital for failing to assist him as he moved from the bedroom to the bathroom.

PRODUCTS LIABILITY

Overview

In general, products liability is when a seller is liable for injuries (usually personal injuries) that a defect causes to its purchaser, user or sometimes bystanders. There are three basic theories of products liability: 1) Negligence, 2) Warranty, and 3) Strict Tort Liability.

Negligence

Ordinary negligence principles apply to a case in which personal injury is caused by a carelessly manufactured product. The common law required privity such that P had to contract directly with D in order to recover. A vast MAJORITY now reject this privity requirement. For example, in MacPherson v. Buick, the US Suprement Court widened the liability standard saying that every manufacturer of a product owes a duty of care to remote purchasers, if the product is likely to cause injury if negligently made. MANUFACTURE/RETAILER Typically in negligence cases, a manufacturer is most likely to be found negligent because of 1) negligent design, 2) careless manufacturing of the product, 3) careless inspections of finished products or 4) failed to package and ship it in a reasonably safe way, or 5) did not take adequate care to obtain quality components. A retailer, on the other hand, is not usually liable in negligence. Just because D sold a negligently manufactured or designed product is not by itself enough to show that she failed to use due care. Typically, retailer’s have no duty to inspect the goods unless there is reason to believe there is a problem. Therefore, suits against retailers are typically brought in warranty or strict liability, not negligence.

Warranty

A buyer of goods may bring an action for breach of warranty, embodied in the UCC, when they are not as they were contracted for. EXPRESS WARRANTY In express warranty, a seller may expressly represent that the good has certain qualities. If the goods turn out not to have those qualities, the purchaser may sue for breach of express warranty under UCC§2-313. This states that an express warranty can arise when a statement of fact or promise about the goods, a description of the goods, or a sample or model. In Baxter v. Ford, D promised the car had "shatterproof glass." The windshield shatters and damages P’s eyes. He successfully sued for breach of express warranty. Breach of express warranty acts kind of like strict liability in that as long as P can show that a statement of fact was false, it doesn’t matter if D believed it to be true or even if D could not have possibly known that it was untrue. P can still recover. IMPLIED WARRANTY Existence of a warranty can also be implied from the fact that the seller has offered the goods for sale. UCC§2-314 states that a warranty that goods shall be merchantable is implied in a K for their sale if the seller is a merchant wrt goods of that kind. Merchantable typically means that the goods must be fit for their ordinary purpose. Most states have rejecting any privity requirement for implied warranties. DISCLAIMERS A seller can make a written disclaimer of both implied and express warnings by making it conspicuous and mentioning the word merchantability itself. However, implied warranties cannot be disclaimed in contracts of adhesion (K’s between parties of unequal bargaining power). In Henningsen v. Bloomfield Motors, P bought a car and the fine print disclaimed all implied warranties. These were not upheld because the "fine print disclaimer" was found to be part of a K of adhesion and "doesn’t trump implied warranty." WHY NOT SUE UNDER STRICT LIABILITY? People often sue under warranty theory when there is pure economic harm or if the statute of limitations has run on the strict liability actions.

Strict Liability

Almost all states apply a doctrine of strict product liability saying that a seller of product is liable without fault for personal injuries caused by a product sold in a defective condition. This is true even if the seller used all possible care and even though P did not buy the product directly from the seller, but through some other retailer. RETAILERS Strict product liability applies to retailers that are in the business of selling such products. RULE In Escola v. Coca Cola, P’s coke bottle exploded. The court ruled that a manufacturer incurs absolute liability for products they put in the market knowing they will be used without inspection. Furthermore, in Greenman v. Yuba Power, a woodworker sued a manufacturer for injuries caused by a defective lathe. The court adopted a strict liability approach saying that regardless of any express or implied warranties, manufacturers are liable when 1) defective product, 2) used as intended, 3) caused injuries, 4) and the manufacturer knew the product would be used without inspection. Some other courts require that the product’s defect exist at the time it left D’s hands. Rix v. GM. For this reason, many people sue retailers under strict liability because it is easier to show that the defect existed when it left their hands. EXCEPTION: UNKNOWABLE Courts have carved out an exception for situations in which the danger of the product’s design was unknowable at the time of manufacture because there was no foreseeable risk and thus no design defect liability. Similarly, there is no failure to warn liability for a danger whose existence was unknowable at the time of manufacture. Therefore, strict liability is limited for both design defects (balancing test) and failure to warn.

Design Defects

RULE Most courts employ a risk-utility test to determine whether there is a design defect. This is a balancing test to determine if the utility of having the product exceeds the cost associated with the risks of it being unsafe. For example, in Prentis v. Yale Mfg. Co., a forklift operator sued a manufacturer for a design defect of failing to install a seat. The court said that they had to weigh the risks of injury against the costs of safer designs. In some jurisdictions, the courts look to see if there was a reasonable alternative design to determine whether the harm posed by the product could have been reduced and therefore whether there is a design defect. In the risk-utility test jurisdictions, this is usually just one of many relevant factors considered. Other factors include 1) how useful the product is, 2) the likelihood the product will cause injury, 3) a manufacturers ability to eliminate the risk, 4) users ability to avoid the risk by use of reasonable care, 5) the feasibility of a manufacturer to spread the loss by price setting or insurance. O’Brien v. Muskin. TWO TYPES Typically, there are either structural defects or defects from lack of safety features. D can sometimes rebut a "lack of safety features" argument by showing that competitive products similarly lack the safety feature and that the product is state of the art using the "best scientific technology that was economically feasible". O’Brien v. Muskin. MISUSE D is not usually liable for injuries stemming from unforeseeable misuse of the product but usually does have to guard against the danger of reasonably foreseeable misuse. In Ford Motor Co. v. Matthews, for instance, a tractor operator was killed when a defective safety switch allowed a tractor to be started in gear. The manufacturer was liable because this was a reasonably foreseeable injury because tractors are meant to be started.

Duty to Warn

If a product is defectively manufactured, no warning can save D from strict liability. If a product is defectively designed, a warning will generally not shield D from strict product liability. If a product is properly manufactured and designed, D must still warn if there is a non-obvious risk of personal injury from using the product. Most courts say that if D can show that he 1) didn’t know and 2) should not have known of the danger at the time of the sale, there is no duty to warn of the danger. In Anderson v. Owens Corning Fiberglass Corp, the court said this is because a manufacturer is not the absolute insurer of its products. The court said that evidence that a product is "state of the art" is relevant in determining whether there was a duty to warn. Additionally, if the danger is open and obvious to most people, this will probably reduce D’s obligation to warn.

Who can be a D?

RETAILERS are subject to strict liability and warranty liability but NOT negligence liability.

USED GOODS MAJORITY says that there is not strict liability or warranty liability for sellers of used goods. In Peterson v. Lou Bachrodt, D sold a used car with defective brakes to X who hit P. P could not recover against D because used car dealers are not well prepared to insure against defects which come into existence after the chain of distribution is completed.

SERVICES Someone selling sercices, rather than goods, generally does not have strict liability or UCC based implied warranties. However, a product used in combination with a service usually will apply strict liability. There is an exception to this "combination" rule for providers of medical services. In Hector v. Cedars-Sinai Medical Ctr, the court said that P could not sue a surgeon who put in a defective pacemaker because providers of medical services are not subject to strict products liability.

Defenses to PL

In Daly v. GM, a drunk driver not wearing a seatbelt was killed when a defective door latch gave way. The court said that comparative negligence defense extends to strict products liability, reducing Ps recovery to the extent that their own conduct contributed to the injury. Furthermore, if P is fully aware of the product’s defect, and voluntarily and unreasonably decides to assume the risk, the modern trend is to treat this as a form of comparative negligence.

Expert Testimony

There are three tests used to determine whether to allow in expert testimony. RELEVANCE The relevance test, used in most of the 20^th century, dominated and said that as long as the person had more knowledge than the jury and the testimony was relevant, the evidence would be admitted. This was allowed except in lie detector tests, voice spectography, and other physical techniques. The major criticism of this approach is that it led to a large amount of junk science. RELIABILITY TEST This became prevalent in the 80s, and was said to solve the junk problem. Daubert The federal court said the reliability test is the right test in federal court in Daubert v. Merrell Dow Pharmaceuticals. The two part test required that the expert testimony be 1) scientific knowledge amounting to good science derived by the scientific method and 2) that it have both general relevance (substance could cause the particular injury) and specific relevance (substance did, in this case, cause a particular injury. Moreover, the Daubert Factors used to determine whether the testimony was reliable were 1) peer review, 2) falsifiability, 3) error rates, and 4) general acceptance in the field. However, the issue with Daubert was that it left open the issue of what to do with non-scientific expert evidence. Kumho In Kumho Tire v. Carmichael, the court broadened the reliability test in Daubert to include non-scientific expert testimony. Kumho said that other factors (in addition to the Daubert 4) could be relevant including 1) whether experts conducted independent research prior to litigation, 2) whether expert unjustifiably extrapolated to an invalid conclusion, 3) whether there were obvious alternative explanations, and 4) whether the field of expertise was known to lead to reliable results (e.g. astrology). EFFECT OF DAUBERT AND KUMHO Ps want to keep PL cases out of federal court because these cases have made the requirements of expert testimony pretty strict. Many states have adopted Daubert, some have adopted Daubert and Kumho, and some have just kept the Frye test. GENERAL ACCEPTANCE TEST Under federal law, the general acceptance test is not viable. However, for many state courts the Frye general acceptance test is the law. In Kuhn v. Sandoz, the court described the Frye test saying that expert scientific opinion can be used if the opinion can be shown to be generally accepted as reliable within the expert’s particular field. However, the Kuhn court did not apply the Frye test because it found that it does not apply in situations of "pure opinion" where the expert derived his opinion based on inductive reasoning based on the expert’s own experience or observation. Criticism of the Frye test say that some opinions that are generally accepted within certain fields (e.g. astrology) still don’t lead to reliable conclusions.

NUISANCE

Overview

Nuisance refers to a type of injury. In public nuisance, the injury is the loss of any right P has by virtue of being a member of the public. In private nuisance, Ps injury is the interference with his use or enjoyment of his land and must be different than that occurring in the public in general.

Public Nuisance

Public nuisance is when there is an interference with a right common to the general public. Examples are health hazards, improper businesses, or obstructions of public streets. Factors used in determining if there is a public nuisance include the type of neighborhood, social value of the activity and the frequency/degree of the nuisance. PRIVATE CITIZEN For a private citizen to recover for his damages in public nuisance, he must sustain damage that is different in kind and degree from that suffered by the public generally. In PECO v. Hercules, the P could not recover for toxic waste seeping from its property from the D who sold the property to him because their nuisance was not different in kind or degree of other members of the public.

Private Nuisance

Private nuisance is an unreasonable interference with P’s use and enjoyment of his land. P can only sue if he has an interest in the land being affected (e.g. fisherman can’t sue for oil spill because it is not his land affected). The elements require that the land be interfered with in 1) a substantial way and 2) Ds conduct was either negligent, abnormally dangerous, or intentional. UNREASONABLE TEST There are two tests to determine whether D’s interference with Ps land was unreasonable. The Benefit v. Harm test sees if the harm to P outweighs the utility of Ds conduct and the Great Burden to P test requires showing that the harm P suffered was greater than P should be required to bear without compensation. Bryant v. LeFever. In Winget v. Winn-Dixie, the court said that compliance with zoning regulations is evidence that can be used to absolve businesses of liability for nuisance based on their location. WHO CAN SUE Typically only neighboring land owners can sue for private negligence. Subsequent purchasrs are typically precluded from suing because of caveat emptor. PECO v. Hercules. REMEDIES If the harm has already occurred, P can recover compensatory damages. In Idaho, Carpenter v. Double R Cattle says that compensation does not need to be given when the benefit outweighs the harm. In most other jurisdictions, a continuing nuisance can be remedied by the payment of permanent damages. For example, in Boomer v. Atlantic Cement the court said that continuing intentional nuisance can be remedied by the payment of damages and allowing the interfering activity to continue. The dissent says that this gave the cement company power of eminent domain which is bad because courts don’t like giving this power to private individuals. Injunction can be given if P shows that damages would not be a sufficient remedy, particularly when damages won’t adequately take into account the subjective value of the land use.

Defenses to Nuisance

When claim is based on D’s negligent nuisance, Ps contributory negligence can be a defense. When the claim is on D’s intentional nuisance, it is usually not a valid defense. Assumption of risk ("coming to the nuisance") often arises when P moved to the nuisance with advance knowledge that the nuisance existed. MAJORITY of states have a "right to farm" statute, for instance. In Spur Industries v. Dell E. Webb, the court said that D’s cattle feed lot was a public nuisance even though P came to the nuisance, and that D still had to relocate because he was the cheapest cost avoider. The main problem with this is that determining the cheapest cost avoider is always ex-post. Therefore, the uncertainty has a very high cost. Perhaps a bad rule (e.g. Coming to the nuisance) is sometimes better because you can plan around it. COASE ANALYSIS The Coasian view is that you can resolve this type of market failure without government intervention by assigning property rights. In Fontainebleau Hotel v. Forty Five Twenty Five, the court said that there was no right to sunlight.

VICARIOUS LIABILITY

Respondeat Superior

If an employee commits a tort during the scope of his employment, his employer can be liable under the doctrine of respondeat superior. Punitive damages can usually only be given if the employer did something wrong as well. In Lundberg v. State, P was killed when D’s employee hit him with his car on his way home from work. The court said this was outside the scope of his employment and that therefore, respondeat superior did not apply. In Fruit v. Schreiner, D’s employee struck P while driving from a work convention ot meet professional colleagues. The court said this was inside the scope of his employment because he was furthering the interests of his employer. The rationale for this rule is that am employer has control over the activities of its employees and is in good position to prevent the damage. Additionally, the employer is in the best position to bear the cost of obtaining insurance.

Who is an employee

Respondeat superior applies to cases involving employees. This typically does not include independent contrasctors. In Murrell v. Goertz, the company was not liable when a paper boy struck P after an argument because the employee was an independent contractor and the publishing company did not control the physical details of how he did his work. However, there are exceptions to this rule in situations where the independent contractor appears just like an employee and the employer has the same level of control over the physical details of how he does his work. Additionally, there are some duties, like the duty to keep your car in good working order (Maloney v. Rath) that cannot be delegated. Moreover, companies are also liable for independent contractors torts when they are performing inherently dangerous activities.

Scope of employment

MAJORITY of courts say that an employee traveling home from work is not acting in the scope of employment. Lundberg v. State. However, a detour for personal purposes may be found to be in the scope of employment if the deviation was reasonably foreseeable. Moreover, even if an act is expressly forbidden by the employer, employer can still be liable if it was done in furtherance of the business purposes.

INVASION OF PRIVACY

Overview

There are four different torts for invasion of privact including 1) misappropriation, 2) intrusion of Ps solitude, 3) publicizing private facts about P’s life, and 4) placing P in false light. MISAPPROPRIATION RULE P can sue if her name or picture has been misappropriated by D for his own financial benefit. In Flake v. Greensboro, a photographed model sued when a baker accidentally used her photograph in an ad. She was only awarded nominal damages because there was no malice and D quickly retracted. INTRUSION RULE P can sue if his solitude is intruded upon and this intrusion would be highly offensive to a reasonable person. Examples would be things like bugging a house, tapping a phone, or snooping through windows. In Pearson v. Dodd, a senator was not able to recover from columnists who published information stolen from his office by two of his employees. The employees intruded but the columnists did not. PUBLICITY OF PRIVATE LIFE P may recover if D publicizes details of P’s private life and this publication would be highly offensive to a reasonable person. Some exceptions to this rule include situations in which the information is of legitimate public concern or is a matter of public record. For example, in Cox Broadcasting Corp., the Supreme Ct. held that disclosing the name of a rape victim that was available in the public record was not subject to this tort. FALSE LIGHT

MISUSE OF LEGAL PROCEDURE

Overview

There are three related torts that protect Ps interest in not being subjected to unwarranted judicial proceedings: 1) malicious prosecution, 2) wrongful institution of civil proceedings, 3) abuse of process. MALICIOUS PROSECUTION To recover for malicious prosecution, P must prove that 1) D instigated criminal proceedings against him, 2) they terminated in favor of P (accused), 3) that D had no probable cause, 4) malice (D was motivated primarily by some purpose other than bringing offender to justice), 5) damages. Texas Skaggs v. Graves (court outlines the elements). Moreover, it is sufficient that the first action have terminated in dismissal rather than acquittal. Texas Skaggs. WRONGFUL CIVIL PROCEEDINGS The primary difference between this and malicious prosecution is that the first action involved civil proceedings rather than criminal proceedings. Otherwise the elements are the same, with the exception that some jurisdictions require proving special damages. Friedman v. Dozorc (saying that a special injury was still an essential element of the tort). According to the Friedman court, this tort requires an injury to fame, injury to ones person or liberty or injury to one’s property. ABUSE OF PROCESS This occurs where a person involved in criminal or civil proceedings uses various litigation devices for improper purposes. For instance, in Grainger v. Hill, an owner of a ship sued a mortgagee for imprisoning him in order to force him to relinquish his boat. D was found liable for abuse of process.

INTERFERENCE W/ ADVANTAGEOUS RELATIONSHIPS

Overview

This tort is good in that it encourages contracting parties to perform their obligations but is bad because it is in tension with the K principle of efficient breach. The law wants to encourage needless and spiteful breachs of K but does not want to interfere with efficient breach. There are three related torts for protecting business interests: 1) injurious falsehood, 2) interference w/ contract, 3) interference w/ prospective advantage. INTERFERENCE W/ K This protects Ps interest in having others perform existing Ks which they have with him. The claim is against someone who induces another to breach a K with P. The rationale is that it encourages individuals to live up to their contractual obligations and discourages practives that will disrupt business dealings. In Lumley v. Gye, P runs a theatre and has a K with an opera singer. D induces the singer not to perform for P and the court ruled that D interfered with Ps K by inducing breach. In Bacon v. St Paul, a livestock dealer sued the stockyards for wrongful interference with K saying that they prevented him from doing his job. The court said this interference with the K was actionable in tort. The court in Adler, which found interference when a lawyer improperly attempted to get clients of his old law firm to switch to him, said the factors to be considered include 1) nature of conduct, 2) motives, 3) the interest they are trying to advance, 4) the proximity of the actions to interference, 5) the relation between the parties, and 6) the social interest in protecting the action. EXCEPTION There are some exceptions which say that you can interefere with a K if it is unenforceable (e.g. illegal, with minors, etc.) or contrary to public policy. For example, in Brimelow v. Casson, P owned a traveling troupe and paid his chorus girls so poorly they were forced to become prostitutes. D induced them to cancel their Ks and D was not held liable for interfering with the K because he was acting for valuable social interests and not in furtherance of his own interest.

MISREPRESENTATION

Intentional Misrepresentation

The common law actions of deceit and fraud typically correspond to what is now called misrepresentation. The elements P must establish include 1) a misrepresentation, 2) scienter (either knowledge of the falsity or reckless indifference to the truth), 3) intent to induce Ps reliance, 4) justifiable, actual reliance, 5) damage to P stemming from the reliance. While typically D’s misrepresentation takes the form of words, it can also take the form of actions or inactions. NON-DISCLOSURE' At common law, failure to disclose was almost never a misrepresentation. In Swinton v. Whitinsville Savings Bank, P sued D for not disclosing that the house he bought had termites. The court said that absent a special relationship, mere concealment or non-disclosure of material facts was not sufficient for misrepresentation. However, modern courts are starting to carve out exceptions where there are special relationships (lawyer/client) and real estate transactions. For example, in Griffith v. Byers, P successfully sued D for failing to disclose the defective soil condition of the property because D had a duty to disclose material defects that parties may be expected to act in reliance on the knowledgeable parties nondisclosure. SCIENTER Under common law, P had to show that D knew or believed he was not telling the truth or did not have the confidence in the accuracy of his statement that he stated or implied. The modern rule removes the need for scienter saying that in some cases even negligent misrepresentation can lead to liability. In Derry v. Peek, applying the common law rule, the court said that P could not recover from D, the chairman of a corporation, for misrepresenting whether steam would give them an advantage in their business. The court said that the speaker honestly believed the statement and that, even if the belief was negligent, he is not liable for misrepresentation. However, in International Products Co v. Erie R.R., the court applies the modern American rule that determining liability for negligent false statement that induce reliance should be determined on a case-by-case basis. The court said that factors that should be considered in determining liability include 1) knowledge that the information is required for a serious purpose, 2) knowledge that the listener intends to rely on the statement, 3) an injury occurring because of the reliance, 4) some relationship that would force them to have a duty to each other already. 3rd 'PARTY RECOVERY Under common law, only people intended to be influenced by the misrepresentation could recover. The modern rule makes it easier for 3^rd parties to recover when P can show that she is a member of the class that D had reason to expect would be induced to rely. JUSTIFIABLE RELIANCE P must show that he relied on the misrepresentation and that his reliance was justifiable. While P has no duty to investigate on his own, even when an investigation would have been easy, P may not overlook the obvious. For instance, in Williams v. Rank & Son Buick, D advertised that a car had air conditioning but it didn’t and P bought it. The court said P could not recover because this was obviously false and the judge said that obviousness should be judged subjectively, looking at the intelligence of the parties. OPINION It is hard for P to recover for a statement that is an opinion, particularly where D is an adverse party at the time of the misstatement. For instance, in Saxby v. Southern Land Co., P sued D for a misrepresentation about the quantity of timber on the land and the court said that statements of opinion do not give rise to liability for misrepresentation because reliance on opinions is not justified. However, P may be justified in relying on D’s opinion if 1) D purports to have special knowledge that P does not have, 2) D and P have a special relationship, or 3) D knows that P is especially gullible. However, salesmen "puffing" is not actionable. In Vulcan Metals Co v. Simmons, for instance, a vacuum salesmen was not liable for statements of opinion made in conjunction with the sale because the court considered this to be puffing.

Negligent Misrepresentation

At common law, there was no action for negligent misrepresentation. Unless P suffered personal injury or direct property damage (and could therefore bring a regular negligence action), P was out of luck. Today however, a MAJORITY of courts allow recovery for negligent misrepresentation even where only economic harm is suffered. For example, in Richard v. A. Waldman and Sons, P relied on a real estate developer’s statement that a home he was buying did not have zoning problems. Even though the residential developer didn’t think there were zoning problems, the court said that this was negligent misrepresentation because real estate developers have a duty to investigate the truthfulness of plot plans delivered to purchasers. Similarly, in Hanberry v. Hearst a woman slipped in shoes that were endorsed by a magazine. D sued the magazine and rather than having the case dismissed, the court said whether endorsing the product was negligent misrepresentation was a question of fact for the jury. LIABILITY TO 3'rd 'PARTIES The maker of negligent misrepresentation is liable to a much narrower class of 3^rd parties than a maker of a fraudulent misrepresentation. D is only liable to the group of people that D intended to reach with the information or whom D knows the recipient intends to reach. Therefore, a MAJORITY of states follow the rule in Credit Alliance Corp. v. Arthur Andersen, in which an accountant can be liable to a 3^rd party that relies on the negligently prepared financial reports, but only if they have a relationship with the accountant that approaches privity.

DEFAMATION

Overview

Defamation is really the two sub-torts of libel and slander. Both of these protect a person’s interest in his reputation. ELEMENTS In order to prove a case of either libel or slander P must show 1) False, defamatory statement, 2) publication of the statement to a person other than P, 3) fault, or at least negligence on the part of D, and 4) special harm of a pecuniary nature (mostly for cases of slander). The statement must injure the reputation of the P. In Grant v. Readers Digest Ass’n, the court said that a statement could be defamatory even if it injures a person’s reputation in the minds of only some people, even if those people are not right thinking. GROUPS If D’s statement concerns a group of people, and P is a member of the group, P can recover only if the group is a relatively small one. Neiman-Marcus v. Lait (382 women couldn’t sue but 25 men could sue). TRUTH Truth is an absolute defense against defamation. At common law, D has the burden of proving the truth of his statement. In Kilian v. Doubleday, for instance, a WWII colonel sued a publisher for false accounts of acts of cruel and unusual punishment he allegedly inflicted. The court said that even substantial truth is an absolute defense against defamation.

However, in some cases P must bear the burden of proving the statement false when D is a media organization and the statement involves a matter of public interest.

Libel vs. Slander

LIBEL Libel consists mainly of written or printed matter. However, in Shor v. Billingsley, the court ruled that a defamatory remark on televised program, even if ad-libbed and not read from a script, can constitute publication of libel. The rationale is that radio and TV can reach a large audience (sometimes larger than a written publication). Therefore, a person can be even more harmed by a broadcast and therefore, we want it to be libel so that it is easier to prove than slander. However, most states have statutes saying that broadcast defamtation should be treated as slander, even if read from a script. SLANDER An ordinary oral statement is typically slander. The distinction is important because slander typically requires proving special harm of a pecuniary nature. There are some exceptions to the special harm requirement in situations of slander per se. Slander per se exists when the statement 1) imputes morally culpable criminal behavior to P, 2) P suffers from loathsome disease, 3) statements that adversely affect P’s business, and 4) statements about sexual misconduct. For example, in Terwilliger v. Wands, D said that P was an adulterer and kept a woman’s husband in prison. P had to prove special damages, despite the "sexual misconduct" exception for slander per se, because at common law adultery was only considered to be sexual misconduct if done by a woman. Publication For publication to be valid for defamation, the statement must be seen or heard by someone other than P. In Economopoulos v. A.G. Pollard, a shopper sued clerks that called him a thief, one of them in Greek. The only bystander overheard the comment in Greek but didn’t understand it. The court ruled that there was no publication because it must be communicated and understood by someone other than P.