Pmbr Torts - Strict Liability, Defamation, Nuisance, Invasion Of Privacy, Misrepresentation.

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3 Types

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1. Abnormally dangerous activities.
2. Wild Animals.
3. Products Liability

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Strict Liability - Abnormally Dangerous

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Abnormally dangerous activities. aka ultra-hazardous actrivities.

Typical Examples:

Blasting, crop dusting, fumigation using cyanide.

Necessarily involves risk of serious harm, which cannot be eliminated no matter how much care is used. Limited to kind of harm foreseeably resulting from this activity. If of a different kind of harm, must show negligence.

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Strict Liability - Wild Animals.

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Possessor of wild animal is subject to strict liability for resulting harm, REGARDLESS of whether injury is of the type foreseen.

Can be liable for injuries suffered while fleeing.

Domestic animals - Not liable unless scienter, or knowledge of violent propensities. One bite rule, first bite is a gimme.

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Strict Liability - Products Liability

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According to restatement of torts, one who sells a product in a defective condition. unreasonably dangerous to the consumer, is held strictly liable. Need only show left seller's hands in defective condition.

Imposed on everyone engaged in the business of selling the product, all the way down the line. Not imposed on an occasional seller, but must be engaged in the business of selling it.

All foreseebale users and consumers can recover. Don;t need privity of contract. Majority of states also allow recovery from bystanders who are injured.

general rule: assumption of risk is the only defense, cont. neg. is no defense, nor is misuse where the misuse is foreseeable.

Failure to provide adequate warnings may make it unreasonably dangerous. Provide grounds for recovery in strict liability. Disclaimer cannot undue liability.

Intangible economic loss not recovering, but personal and property damage is recoverable.

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Strict Liability - Products Liability - Simultaneous causes of action

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Other causes of action are oft present. Discuss negligently and breach of warranty.

May be liable for failure to exercise reasonable care in teh inspection or sale of a product.

FOr negligence, will have to show duty and breach.

Warranty Theories: So long as more than mere puffing, 2 possible implied warranties

Implied Warranties:

Warranty of fitness for a particular purposes

Warranty of merchantibility: Goods are generally acceptable, and generally fit for ordinary purposes.

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Nuisance - Public Nuisance

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Public Nuisance - Unreasonable Interference with a right common to the general public.

Significant interference with public health, public safety, public comfort, public peace.

Need not be violation of statute or ordinance.

To recover, P must show that suffered of a kind different from that suffered by members of the public: e.g. fact that plaintiff has used a highway far more frequently than the public in general, does not give him private right of action.

Where plaintiff suffers physical injury, harm to his health, harm to chattel, then his injury is of a different kind, no difficulty in finding a different kind of damage. Also, where any substantial interference with P's enjoyment of his land, as where living next to brothel, offends public morals, but also litters his sidewalk with condoms, damages are of a different kind.

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Trade Libel

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Injurious to business or products

aka slander of goods

doesn't apply to injury to reputation, that would be defamation.

Elements:

1. Publication.
2. Derogotary or disparaginf statement.
3. Relating to P's property or business.
4. Forcing pecuniary loss.

Interference with contractual relations falls under this doctrine. Must be a K in effect, and D's conduct has inducing breach.

Interference with Prospective Advantage. - Protects prospective contracts. Defense centers around competition. No tort to beat a business rival's prospective.

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Private Nuisance

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Disturbance creates a substantial and unreasonable interference with one's use and enjoyment of the property.

Must be substantial interference, and objective test referring to average person in the community.

Not equivalent to trespass, does not require physical entry. EG - animals from neighbor on your yard is a trespass, but also a private nuisance, because subsantial and reasonable interference with use and enjoyment.

Def

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Private Nuisance - Defenses

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Coming to the Nuisance is not a complete defense, but is a factor that courts will consider.

Compliance with statute is a relevant and pursuasive factor, not not ipso facto a defense.

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Private Nuisance - Remedies

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1. Money Damages
2. Where $ damages are inadequte, injunctive relief.
3. Abatement by self help, only after notice to D and subsequent refusal to act.

Abatement to public nuisance is also allowed after noticee.

For Injunction, courts must balance the equities, where enjoining the nuisance will create economic hardship to many, like in a factor, courts will attempt to redress through money damages.

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Misrepresentation - Elements

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Aka Fruad, Deceit. Same COA

PRima Facia Case

1. False Statement
2. Scienter - D's knowledge that is was false
3. Intent to reduce p to act or refrain from acting.
4. Causation - Actually acts or doesn't act.
5. Justifiable reliance by Plaintiff.
6. Damages.

No liability for refraining to disclose, except where a fiduciary relationship exists, as in between an executor and a beneficiary, a minority and a majority stockholder, bank and depositors, principal and agent.

EG - Trading your crap for a Mickey Mantle card to a fool, no liability, no duty to disclose.

EG - Where D has provided half truths, certain info without all of it, eg, D sells used car, tells him mileage is as listed, whereas odometers had broken at 20, thats a misrepresentation by failing to disclose entire facts.

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Defamation - Elements

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1. Defamatory Language of or concerning the plaintiff
3. Publication - communicated to someone other than the plaintiff,
4. damage to plaintiffs reputation.
5. If a public concern, falsity
6. If a public concern, fault.

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Defamation - Elements - Language of or Concerning the Plaintiff

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1. Statements of fact intending to Defame a living person.

If not defeamtory on its face, P may plead additional facts as inducement to establish defeamtory meaning by innuendo.

Must establish that a reasonable reader or listener or viewer would understand that it referred to him or her. (Objective)

Extrinsic evidence may be used to show that the statement refers to the plaintiff (colloquium).

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Defamation - Elements - Publication

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Statement must be communicated to someone OTHER than the Plaintiff. Where defamatory statement made only to P, no publication, no defamation.

Anyone who repeats a defamation is liable, publishers, etc.

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Defamation - Elements - Damage to Reputation, exception to damages

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Slander v Liable - Permanacy and Dissemination

Radio and TV are libel, sufficientl permanent and broadly disseminated.0

If the language is slander, must claim and prove special damages, pecuniary loss.

Libel, however, dealing with written or printed publication of defamatory statement, P need not prove special damages, general damages are presumed.

For slander per se, damage is presumed, no need to plead and prove:
1. Unchastity
2. Loathsome Disease
3. Imputes Improper Conduct in one's trade, business, profession
4. False accusation of someone of committing a crime.

Where the statement is I protected, must show falsity and fault. For, public official must prove malice in order to recover and knowledge of falsity.
But, for private person need only prove negligence

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Defamation - Elements - Defenses

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Consent

Proof

Absolute or Qualified Privilege:
Absolute in judicial, executive, and legislative proceedings "speech and debate clause."

Qualified Privilege to make defamatory statements in the interest of others, proved you reasonably believes the statement to be true. But if acting with malic, or knowledge of falsity, still liability.

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Invasion of Right To Privacy

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Comprises four distinct COA

1. Appropriation - unauthorized use of name or commercial likeness to economic gain. Liability limited to ads or promotions for products and services.
2. False Light - Exists where someone attributes to the plaintiff views he does not hold or actions he did not take, objectionable to a reasonable person.
3. Public Disclose of Private Facts - Would be highly offensive to reaonable person and not of public conern (can't be newsworthy)
4. Intrusion on one's seclusion or solitude - Act of prying or intruding on one's personal life, objectionable to a reasonable person.

Defenses to defamtion are applicable to invasion of privacy, mistake is no defense, truth is no defense.

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Misuse of Process

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Malicious prosecution, - Where a person initiates pr procures the initiation of criminal proceedings against the plaintiff, where P is not guilty, person is liabilitiy. D must initiate and procure procedings without prob. cause, and procedings have terminated in favor of the accused. Harm to reuptation, emtotional distress

wrongful use of civil proceedings: one who takes an active part in the initiation, procrement, or continuation of civil procedings is liable if he acts without basis in bad faith, AND primarily for a purpose other than adjudication of the claim

Asbuse of Process - If process used in bad faith to accomplish a purpose for which it was not designed, liability.