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231 Cards in this Set
- Front
- Back
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Restatement (2nd) of Torts § 402A (know this section by number!) :
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(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:
(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in subsection (1) applies although (a) The seller has exercised all possible care in the preparation and sale of his product, and (b) The user or consumer has not brought the product from or entered into any contractual relation with the seller |
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Establishing a Prima Facie case for Strict Product Liability
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• Product was in defective condition, unreasonably dangerous for its intended or foreseeable use or misuse
• Defect existed at time product left D’s control • Defect caused harm complained of |
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Is Economic Harm redressable under Strict Products Liability
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Not if it is Economic Harm Only due to the product itself being damaged. There must be physical harm as a result of the defect to recover under strict liability
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Distinguish Strict Products Liability from Contractual Warranty
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• Products liability: hazardous product exposes P to unreasonable risk of harm to person or property (property must be other than that purchased from seller).
• Contracts: P failed to receive quality of product expected. |
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What are the three types of product defects
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• Manufacturing
• Design • Warning |
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Inference of Product Defect (RS3):
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• Incident was of kind that ordinarily would occur only as result of product defect.
• Evidence supports conclusion that o Cause of harm was product defect rather than other possible causes, including conduct of P and 3dps o Defect existed at time of sale or distribution |
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Manufacturing Defect
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a) Definitions: Product departs from the intended design though all possible care used in prep and marketing of product
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How do you establish a prima facie case for Manufacturing Defects
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a. Product was in defective condition and unreasonably dangerous for its intended or foreseeable use and misuses
i. Looking for “circumstantial proof of defect” for S/L 1. Need pattern of evidence that item was not correctly built 2. Similar to res ipsa (negligence), but NOT same b. Defective at the time the product left the defendant’s control i. Defect caused the harm complained of |
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Restatement 2d test for Design Defect. Consumer Expectation Test ( a strict liability Test)
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Product is defective if it is dangerous to extent beyond that contemplated by ordinary consumer who purchases it, with ordinary knowledge common to community as to its characteristics.
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How do you determine whether to apply the Consumer Expectation Test of Risk Utility Test
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o The consumer expectation test is applied when P has a specific expectation of safety. If there is no specific expectation of safety, use a hypothetical “well informed consumer” who would want reasonable safety. Then, determine reasonable safety through the risk utility analysis.
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What Factors are considered under Risk Utility
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Utility of product
Likelihood and seriousness of foreseeable injury Safer feasible alternative |
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What is the "gist" of the risk utility Test
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given risk, benefit, and alternatives, is society willing to live with the product as is or will they require change?
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When do you use the Consumer Expectation Test
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When there is a specific consumer expectation of safety - based on labeling or something inherent in the product - ie. roll bar.
When the product is unreasonbly dangerous under the Rs 2d test - Product is only unreasonably dangerous if it meets this definition Liability is strict – only requires that the person be injured by something that frustrates the consumer expectation of safety. |
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Second Explanation - when to use the Consumer Expectation Test
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o The consumer expectation test is applied when P has a specific expectation of safety. If there is no specific expectation of safety, use a hypothetical “well informed consumer” who would want reasonable safety. Then, determine reasonable safety through the risk utility analysis.
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What elements must be present to prove a design defect under the Rstmt 3d
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• Safer feasible alternative design
• Circumstantial evidence (EX: product fails to perform its manifestly intended function) i.e. wings of plane fall off. • Manifestly unreasonable (EX: toy gun with rubber bullets) • Failure to comply with government safety statutes or regulation |
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What are Unavoidably unsafe products
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(RS 2 Comment K)
o Defined: in the present state of human knowledge, the product is incapable of being made safe for intended and ordinary uses |
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Does s/l apply to unavoidably unsafe products?
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no design defects for these products do not impose strict liability. If Comment K applies, then the manufacturer/seller will only be liable through negligence
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What categories of products are primarily considered as unavoidably unsafe?
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This classification applies to medical equipment and medicine almost exclusively.
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What is necessary for warnings to be adequate.
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a. Warnings must be both substantively and procedurally adequate.
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What constitutes substantive adequacy in a product warning
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Warning affects assessment of risks to extent manufacturer can expect user to heed warning and thus avoid the danger
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What constitutes procedural adequacy in product warnings.
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o Designed to reasonably catch attention of consumer
• Conspicuous • May need multiple languages • May need pictures or other non-verbal warnings. |
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When is a warning substantively inadequate
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When it fails to provide consumer with the necessary information to assess the risk.
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What is the gist for Substantive adequacy in warnings
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Has to satisfy an ordinary consumer – not every idiosyncratic desire for information. It just needs to perform
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What is the position of the Restmt 3d regarding unreliable learned intermediaries
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Restatement 3d takes a hard line on unreliable intermediaries. Only if no healthcare provider would give a warning would the mfr. Be required to provide an independent warning.
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What is the learned intermediary doctrine
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when a drug is administered through a 3rd party (doctor, nurse, pharmacist) the manufacture’s duty is to warn that 3rd party of the known risks , not the ultimate consumer.
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What is the State of the Art Defense in Failure to Warn
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risk neither known nor knowable by application of scientific knowledge available at time of manufacture and/or distribution
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Liability for Nuisance actions can be based on?
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(i) Intent –
• Purpose • _substantial certainty____ (ii) Negligence (iii) _Strict Liability___ (iv) Violation of a Statute |
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Which type of Nuisance, public or private - is always tied to the lane?
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Private
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What is the definition of a public nuisance
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b) Definition: substantial and unreasonable interference with right held in common by general public in use of public facilities, in health, safety or convenience.
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What is required to pursue a private action for public nuisance
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P must suffer a different kind of harm from the general public.
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What is the definition of a private nuisance
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a) Definition: substantial and unreasonable interference with Plaintiff’s use and enjoyment of property.
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How Does Rstmt 2 define substantial interference with land for private nuisance.
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liability for nuisance only if it causes significant harm that would be suffered by a reasonable person in the community.
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What is the general definition of substantial interference
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Something that would offend a reasonable person - not a hypersensitive one
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What are two rules of thumb for what will constitute a substantial harm for private nuisance
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1) Reduction in FMV of land
2) Physical harm to the land |
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What is the def. of unreasonable under private nuisance
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• Given time, place, and social expectations of locale, not reasonable to expect P to put up with invasion without compensation
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How does Rest. 2d balance the harm vs. utility under private nuisance
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Unreasonable if gravity of harm to P outweighs utility of D’s conduct OR harm caused by D’s conduct is substantial; and financial burden of compensating P does not render continuation of conduct infeasible.
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What is the gist of Rest. 2d's approach to balancing the utility vs. the harm?
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Questions is can the D afford to pay some damages without shutting down the business – if so they have to pay. Trying to balance the ability to compensate those harmed with avoiding shutting down businesses with utility
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What are 4 remedies if a private nuisance suit is brought?
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1) No Nuisance
2) Finding Nuisance. P enjoins D. 3).Finding Nuisance. D compensaes P. 4) Finding Nuisance. P compensates D - Coming to the nuisance. Note: Coming to nuisance is not dispositive. |
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What factors are considered in evaluating the gravity of the harm in a balancing test for private nuisance?
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Extent of Harm
Character of harm Social Value of P’s use Suitability of P’s use to character of locality Burden on P of avoiding the harm. |
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What factors are considered in evaluating the utility of the D's conduct in a balancing test for private nuisance?
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Social value of conduct
Suitability of conduct to character of location Impracticability of preventing or avoiding invasion |
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What is the interest protected in a misrepresentation claim
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Economic Interest
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Vicarious Liability:
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a form of strict liability where the defendant is legally responsible for the tortuous conduct of ___another who is the one actually at fault in causing the injury.
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o Strict liability
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legal responsibility without fault
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What types of torts does vicarious liability apply to
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• Applies to all torts: intentional, negligence, strict liability
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What types of relationships does Vicarious Liability apply to
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o Employee/Employer (most common)
o Joint enterprise o Special case for vehicles o Derivative actions |
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• Respondeat Superior
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o RULE: The employer is vicariously liable for torts of servants committed in the scope of employment_.
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When is an employer VL for the actions of his employee
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When the tort occurs in the scope of employment
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What is within the scope of employment
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• Time, place, and circumstance of employment
Or Arising out of employment |
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Exceptions to Scope of Employment where VL still attaches
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• Dual Purpose – when employee does something _that is a concurrent__ business interest while traveling to or from work – V/L
Mere Detours |
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When does employee go outside of scope of employment for purposes of V/L
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o Frolic – __something done for the employee’s own purposes. An errand of an entirely personal nature unrelated to the job._.
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How Do you determine if it is a frolic or merely a detour
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Look at distance, is it reasonably connected, is it reasonably foreseeable)
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What are the rules for Arising out of Employment
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Traditional - employee conduct was in the furtherance of the employees business.
Modern - extends liability where employer provides __”unique opportunity” for employee misconduct_. |
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Ca rule for arising out of employment
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o Was the conduct personally motivated or generated by the employment?
o Is the abuse of power reasonably foreseeable? |
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Is their VL for independent Contractors?
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No - • Independent contractor is typically not subject to the close control of the person doing the hiring unlike employees.
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What is the rule for VL and non-delegable duties
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Hiring party is VL
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What are non-delegable duties
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duties of care deemed so important that the person doing them is not allowed to delegate them to anyone _
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What is test for non-delegable duties
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inherently dangerous activities: employer is liable for an employee and independent contractor where there is a foreseeable risk of harm that can’t be eliminated __with the exercise of ordinary care_.
• Would the exercise of ordinary care eliminate the risk? • What are the risks that made this inherently dangerous? • Was it part of the inherent risk or was it collateral risk? • Applies when there are risks that are inherent in the activity itself rather than the way the activity is performed. |
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• Abnormally dangerous activities
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activities that have both a high degree of risk and a high likelihood of occurrence – ie. Blasting or large scale excavation
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Def. Vicarious Liability
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When Defendant is legally responsible for the tortious conduct of another who is the one actually at fault in causing the injury
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What are exceptions to Time, Place and Circumstance requirement for Employer VL
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Comings and Goings - VL if dual purpose
Frolics - no VL unless mere detours = trivial departure |
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What types of acts are covered within an employers VL
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Prohibited acts, intentional torts, and even crimes if they are in furtherance of the employer's business
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What are non-delegable duties
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) Inherently dangerous activities
2) Required by statute to provide safety protection for others 3) Maintain safety of land open to public 4) Provide chattels for business use 5) Abnormally dangerous activities |
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Non-delegable duty: 2) Required by statute to provide safety protection for others
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ex. you hire someone to fix your brakes - you are still responsible because the law requires you to drive a safe car
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What are exceptions which impose a Non-delegable duty on a hiring party
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Statutory Requirement to provide safety to others. ie. brakes
Maintain safety of land open to the public - ie. hotelier Chattels for business Use Abnormally Dangerous Activities |
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Non-Delegable Duty 1) inherently dangerous activities
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Activities where foreseeable risks cannot be eliminated by the exercise of ordinary care
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What is the rule for the joint venture liability for partners
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o RULE: general partners are legally responsible for torts by other partners committed in the course of business.
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What is the rule for an implied joint enterprise
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o MODERN trend: limits this type of joint enterprise
• Does each party have a voice in the management? |
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What is the Family purpose Doctrine
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o RULE: when the owner of the automobile permits members of the immediate family or the household to use the automobile, the owner will be vicariously liable because the driver is considered to be the owner’s agent – true in about 12 states
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What is the rule for vehicles in states which assign statutory owner responsibility
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o Permissive use statutes
• Owner liable for damages caused by negligence of anyone driving with their permission. • Permission can be express or implied. • Note: the statute may limit the amount the owner is vicariously liable for. |
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What is the majority law concerning Contribution
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Uniform Contribution Act
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Does the Plaintiff have to share in uncollectible amounts under Uniform Contribution Act
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No - if they were considered negligent at all - they got nothing.
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What happens with a defaulted Share under the Uniform Contribution act.
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burden falls on remaining defendants
joint and several |
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What happens with a defaulted Share under the Uniform Apportionment Act.
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burden redistributed among all parties including plaintiff
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What happens with a defaulted Share with an unknown D
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Traditional - Plaintiff absorbs
Modern UCA - Redistributed to remaining D's UAA - redistributed to all parties Several Liability - P absorbs |
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What happens under Several Liability for a defaulted share
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burden falls on Plaintiff
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What happens under UCA if one party settles?
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Unsettled amount is reaallocated to other D's - P receives no allocation
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Who does Mommy Love
What does Royce Love |
Royce & Daddy
toysRus |
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What happens under the UAA with a settlement
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The entire amount assigned to te party who settled is deducted from the total amount of damages the P is elegible to receive. P who settles absorbs the difference between settlement amount and share of responsibility assigned by the jury. This is the compromise position
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What happens under Several Liability if a party settles.
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The settled amount is deducted from the P's total damages and then P absorbs any uncollectible amounts as well as any released amount through settlement.
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How do the UCA, UAA and Several Liability affect 's recovery under settlements or defaults
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P absorbs the most under Several Liability and the least under UCA.
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Traditionally how was an unknown d's share handles
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they couldn't be made a party so it is just unrecoverable
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Modernly how is an unknown d's share treated
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Treated like a defaulted share
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How does settlement affect vicarious liability
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o Note: even modernly - If you have an issue of vicarious liability – if you settle with either of the parties – the whole case is gone. There is only one cause of action with only one source of liability.
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What is the general rule of nonfeasance
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Person owes no duty to take affirmative action for protection of another.
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What are the exceptions which impose a duty and liability to take affirmative action for protection of another
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• Special Relationship to P or dangerous 3dp - based on the statut of the parties
• Creation of risk/harm • Undertaking to provide assistance/taking charge of helpless plaintiff |
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What special relationships usually give rise to duty to take affirmative action for protection of another
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Common Carrier/Passanter
Innkeeper/Guest Inviter/Invitee Custodian/Ward Employer/Employee NOT Husband/Wife |
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when do businesses have a duty to protect customers
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businesses have a __duty to protect customers_ on the premises when criminal acts are _foreseeable__.
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What are the approaches to foreseeability which would create a duty for a business to protect customers
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Specific Harm
Prior Similar Incidents Totality of the Circumstances Balancing Test |
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`What is the better reasoned test for foreseeability for business
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Balancing Test
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What is the balancing test for Foreseeability and business under nonfeasance
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Balance foreseeability of the harm (criminal acts) against imposing the duty (cost) of preventing that harm. The more foreseeable the crime, the more a person (under RPP std) has to do to protect against it.
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Who has the burden to establish the duty under the balancing test for Foreseeability and business under nonfeasance
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The plaintiff
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What is theTotality of the Circumstances test for Foreseeability and business under nonfeasance
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The courts consider nature of crimes, nature of convictions, nature of the land, etc. They are willing to look at minor crimes as precursors to major crimes. However, this approach has been criticized as being too broad. MAJORITY
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What is the majority Test for Foreseeability under businesses and nonfeasance
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Totality of the Circumstances
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Do Landlords have a duty to protect lessors from criminal acts by third parties
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No - General Rule is they have no duty to protect against criminal acts by third parties.
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What exceptions may impose a duty on landlords to protect tenants against criminal activity
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If the condition of the property increase the likelihood of criminal assault.
If you decrease the level of security after a tenant enters a lease Landlords control over common passageways may impose a duty. |
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When does an employee have an affirmative duty to protect an employee
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Employer knows employee is in position of imminent danger of serious harm
Employer knows employee is hurt and helpless |
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When does taking charge of a helpless plaintiff impose liability for nonfeasance
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One who takes charge of another who is helpless to aid or protect himself is subject to liability if he:
1. fails to exercise reasonable care for other’s safety, or 2. discontinues aid, if it leaves other in worse position |
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What does the restatement 3d say about helpless plaintiffs
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If undertake to assist a helpless person in imminent peril of serious bodily harm, must act with reasonable care to secure person’s safety
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What is the broad rule of Undertaking Assistance
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One who undertakes, gratuitously or for consideration, to render services necessary for protection of another, is subject to liability if:
a) his failure to exercise RPP care increases the risk of such harm b)or harm is suffered because of other’s reliance on the undertaking |
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What is the standard of care that is required if undertaking assistance
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RPP
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Is there ever a duty to render aid in a social venture
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Minority Rule: o This is an __expanded special _ relationship – duty to one person can change depending on where you are.
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What is the rule regarding dangerous 3d parties
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Thompson general Rule: There is NO duty to warn unless there is a prior threat to ___specific identifiable victim. General duty to warn only arises where county has a special relationship with the victom. Ie. Johnson – foster child had a relationship with county.
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What is the Public Duty Rule
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Governmental entities owe duty to public at large, not to private individuals
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Restatement §321 Create Risk of Harm
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One who creates unreasonable risk of physical harm to another has duty to exercise RPP care to prevent risk from taking effect.
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Restatement §322 Instrumentality of Harm
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One who causes harm to another – whether tortiously or innocently – has a duty to provide reasonable assistance to prevent further harm to the other.
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what duty "flowers Up" when you are the instrumentality of the harm
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Liability for not assisting and preventing any other from helping
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What injuries are you liable for when the injuries are caused innocently ( not negligently)
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• For the ___aggravation__ of those injuries – there would only be liability for the subsequent injuries caused by a failure to provide reasonable assistance to prevent further harm.
• Innocent causing of harm then new duty flowers up (_negligence_ from the new duty) o If you are negligent in causing the harm • Then you are _liable for the injury_ and the __aggravation___. • This is an independent duty: independent of the action of either party. |
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RS §321: Creation of risk of harm (Dead Horse on the Highway)
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• One who creates ___unreasonable risk of physical harm_ to another has duty to exercise ___RPP care__ to prevent risk from taking effect
• Use this when no harm has been caused yet, this creates a __risk of harm__to someone later o Don’t talk about it when someone else caused a harm already |
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Interference with rescue
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Generally: __you do not have a duty to aid__ if your conduct/instrumentality did not cause the injury
EXCEPTION: duty not to _interfere_ with another’s aid |
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Good Samaritan Statute:
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• Does NOT impose a duty to aid
• Protects you from __negligence__ liability to encourage reluctant rescuers if you begin to aid |
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Who is considered an Owner for purposes of Tort Law
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Includes:
• Owner • Renter • Family member of possessor • Person acting on behalf of owner/possessor – includes: Someone who is temporary possession for whatever reason – ie. Contractor |
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What is duty to act affirmatively on behalf of entrants to your land.
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once entrants presences is known, __RPP duty for all classifications of entrants.
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What is Owner's duty with regard to natural conditions
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no duty of care except to warn of non-obvious dangers that landowner has reason to know about.
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what duty "flowers Up" when you are the instrumentality of the harm
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Liability for not assisting and preventing any other from helping
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What is owner's duty with regard to artificial conditions on land
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duty depends on classification of entrant onto the land
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What is a trespasser
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• Defined
• anyone who has no legal right to be on the land and • enters without landowners consent |
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What injuries are you liable for when the injuries are caused innocently ( not negligently)
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• For the ___aggravation__ of those injuries – there would only be liability for the subsequent injuries caused by a failure to provide reasonable assistance to prevent further harm.
• Innocent causing of harm then new duty flowers up (_negligence_ from the new duty) o If you are negligent in causing the harm • Then you are _liable for the injury_ and the __aggravation___. • This is an independent duty: independent of the action of either party. |
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What is the duty to a trespasser
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• Warn of non-obvious dangers
• Avoid willfully and wantonly injuring |
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When is the duty to a trespasser triggered
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when the landowner __knows_ of the danger and _knows_ the entrant is about to encounter the danger.
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What is the footpath exception
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• Definition: constant trespass on limited area
• Gives owner notice of presence of trespassers – creates an affirmative responsibility to warn – content of the duty is less than reasonable care. • When you know of their presence, you owe them the typical duty to trespasser (duty to warn of non-obvious dangers) |
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What is a licensee
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anyone on the land with permission but with limited license to be there
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When is the duty to a licensee triggered
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• Know or have reason to know of danger and know or have reason to know entrant is about to encounter the danger.
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Public Invitee
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• Invited to enter as a member of the public for the purpose for which the land was held open to the public
• Invitation Test - Once the place is open to the public – Assurances of reasonable care ordinarily given. • At the public library (etc) |
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Business Invitee
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• MUTUAL BENEFIT test – whether the person was on premises at least in part for pecuniary (monetary) benefit of the landowner.
• Directly or INDIRECTLY related to the business dealings of the land (Networking might qualify). • Going somewhere to shop |
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When is the duty to an invitee triggered
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• When open premises to invitee
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What is the duty to an invitee
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– this imposes an affirmative duty
• To inspect and make premises safe |
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What standard of care is owed to an invitee
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RPP
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Is a warning sufficient for an invitee
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sometimes - if They know, understand, and can avoid it. They have all they need to make themselves safe
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When is a warning not sufficient for an invitee
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• Warning is NOT enough when it doesn’t make it able to proceed safely.
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Is a warning sufficient for an invitee
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sometimes - if They know, understand, and can avoid it. They have all they need to make themselves safe
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what is the special duty to child trespassers
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children are entitled to a duty of care that is appropriate to their ability to sense danger._________
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When is a warning not sufficient for an invitee
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• Warning is NOT enough when it doesn’t make it able to proceed safely.
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What is an attractive nuisance
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• As though something on ∆ property that is attractive to children, that they could see from off the property, as if children were invited onto property by nuisance on the premises
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what is the special duty to child trespassers
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children are entitled to a duty of care that is appropriate to their ability to sense danger._________
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What is the trigger for child trespass
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Danger of serious bodily harm or death
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What is an attractive nuisance
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• As though something on ∆ property that is attractive to children, that they could see from off the property, as if children were invited onto property by nuisance on the premises
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When is the duty to a child trespasser triggered
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1. Know/have reason to know of danger
2 child trespass is foreseeable 3 know of have reason to know that child is unable to appreciate the danger |
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What is the trigger for child trespass
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Danger of serious bodily harm or death
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Is there a duty to inspect for a child trespasser
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no
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When is the duty to a child trespasser triggered
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1. Know/have reason to know of danger
2. Trespass by children is foreseeable 3. know or have reason to know child is not able to appreciate the danger |
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When is child trespass foreseeable
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2. Trespass by children is foreseeable
VERY BROAD – more than licensee or trespasser |
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What common hazards should a child understand
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Common hazards child should understand:
• Burn • Drowning • Falling from high places |
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When is a landowner liable for a child trespasser
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a. Place of condition is one in which the possessor __know/or has reason to know__ (foreseeability) to know of likely child trespassers, AND
b. Condition is one possessor knows/has reason to know (foreseeable) and he realizes/should realize that it will involve _an unreasonable risk of death or serious harm_ to child, AND c. Children, b/c of age, don’t discover the condition or realize the risk in playing with it or coming around it, AND d. _Utility of danger to the possessor____ and the burden of eliminating it are slight compared with the risk to children, AND e. Possessor fails to exercise _reasonable care_ (level of duty owed) to eliminate danger/protect children f. Doesn’t apply to ___dangers obvious to children__ that should be fully recognized by a child (Common Hazard Doctrine). |
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When is child trespass foreseeable
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2. Trespass by children is foreseeable
VERY BROAD – more than licensee or trespasser 3. ___know or have reason to know child is_not able to appreciate the danger.__ |
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What common hazards should a child understand
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Common hazards child should understand:
• Burn • Drowning • Falling from high places |
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When is a landowner liable for a child trespasser
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a. Place of condition is one in which the possessor __know/or has reason to know__ (foreseeability) to know of likely child trespassers, AND
b. Condition is one possessor knows/has reason to know (foreseeable) and he realizes/should realize that it will involve _an unreasonable risk of death or serious harm_ to child, AND c. Children, b/c of age, don’t discover the condition or realize the risk in playing with it or coming around it, AND d. _Utility of danger to the possessor____ and the burden of eliminating it are slight compared with the risk to children, AND e. Possessor fails to exercise _reasonable care_ (level of duty owed) to eliminate danger/protect children f. Doesn’t apply to ___dangers obvious to children__ that should be fully recognized by a child (Common Hazard Doctrine). |
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Firefighter Rule
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Landowner not liable for paid rescuer, for negligence with respect to creation of fire that necessitated them being called.
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• Recreational Use Statutes
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Legislatively introduced limited landowner duty when land opened to non-paying recreational users
• You agree to open to the public, there is __no duty of RPP__ care on the land • No duty of ordinary care • Only the duty to trespassers |
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What is duty to persons outside land
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• Moving towards RPP to discover danger and deal with it
• Doesn’t require inspection of natural conditions • Do you have within your knowledge reason to know that there is a danger? |
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General rule for someone on premise of lessor:
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• not liable for injuries caused by defective or dangerous conditions in leased premises
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What Exceptions impose a duty on a landlord
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o _Hidden Dangers_
o Premise leased for public use o _Premises retained under landlord’s control__ o Premise negligently repaired by LL |
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What is the special duty to child trespassers
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children are entitled to a duty of care that is appropriate to their ability to sense danger.
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What is the duty to children regarding Hazardous machinery on land
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dangerousness which isn’t apparent to children, you owe a duty to kids where you don’t owe it to adults
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Trigger for Child Trespasser.
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Danger of serious bodily harm or death
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Is there a duty to inspect for child trespassers
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No duty to inspect
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When is the duty to children triggered
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When you 1) know or have reason to know of the danger and 2) trespass by children is foreseeable and 3) know or have reason to know child is_not able to appreciate the danger.
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What is the definition of an invitee
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• Is on premise held open to general public
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What is the invitation Test?
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When open to the public, assurance of reasonable care is assured
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What is the test for a business invitee
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Whether the person was on premises at least in part for pecuniary (monetary) benefit of the landowner.
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Public Invitee Test
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• Invited to enter as a member of the public for the purpose for which the land was held open to the public
• Invitation Test - Once the place is open to the public – Assurances of reasonable care ordinarily given. |
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What is the trigger for a duty to an invitee
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When Premises are open to the public
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What is the duty to an invitee
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To inspect and make the premises safe
Warnings may sometimes suffice |
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What are the two types of invitees and how do you distinguish them
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business invitee - For mutual economic benefit
Public Invitee - Opened property for benefit of the public. |
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What is the Duty to a licensee
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Warn of non-obvious dangers and
Avoid causing wilfull and wanton injuries |
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What is the duty to a Business Invitee
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To inspect & make premises safe
Standard of Care is RPP Warnings may sometimes suffice |
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What is thr rule for the broad range of duties owed to an invitee
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1) duty to inspect premises using reasonable care; 2) duty to provide a warning; 3) may require exercising control over 3rd parties on the premises.
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Whole Publication Rule
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Headline – there is more weight given to headlines – because people might be unlikely to read the entire article. Courts will generally try to consider the entire document but give more weight to headlines.
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What are the elements for defamation
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1) Statement of Fact
Understood as Defamatory Of Plaintiff 2) Published to Third Party 3) Causation 4) Damages |
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What qualifies as Slander per se
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1)Accusation of a Serious Crime
2) Imputation of a loathsome disease 3) Unfit or incompetent in trade or profession 4) Unchaste |
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What qualifies for special damages for Slander ( not per se)
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Ex. loss of job, profits, marriage, hospitality, customers, gratuity.
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What type of Slander has presumed damages
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Slander Per Se
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What is required to prove libel that is per quod.
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requires allegation of existing facts outside the libelous communication itself
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What factors are considered under group defamation
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Size of Group
Inclusiveness of Language Extravagance and visibility of charge Special Circumstances |
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What classifies as special circumstances for group defamation
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ex. Looking directly at one person while making a statement about a group.
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Is the intention to be defamatory relevant
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No - it is only based on the perception of the person who receives the communication.
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What is the test for a Public Official
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Whether position in government has such apparent importance that public has independent interest in qualifications and performance of person who holds it
Beyond general public interest in all governmental employees |
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All-Purpose Public Figure
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General fame or notoriety in the community
and ◊ Pervasive involvement in affairs of society |
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What are the two types of Public Figures
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1. All-purpose public figure
2. Limited public figure |
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Public Person/Public Concern
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1. False statement understood as defamatory of Plaintiff
2. Published to third party 3. Malice 4. Causation 5. Damages (presumed) |
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How did Public Official Test changed C/L in 2 ways
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□Cannot recover for defamation unless proves D acted with “actual malice”
□Shifted burden of proof to plaintiff on issue of falsity |
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Limited Public Figure
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Person who voluntarily injects himself or is drawn into particular public controversy
● public figure for limited range of issues ● related to that person’s public figure status |
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How do you establish a prima facie case for defamation for a Private Person/Public Concern
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False statement understood as defamatory of Plaintiff
◊ Published to third party ◊ Fault ◊ Causation ◊ Damages (must prove actual damages) |
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Proof of Bad Reputation Rule
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May offer proof of bad reputation prior to publication
but ● May not plead or prove specific instances of P’s misconduct having no connection with charge of libel |
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General Rule for Strict liability with animals
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strict liability for wild amimals and abnormally dangerous domestic animals
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Wild Animal
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One that has not beed dedicated to the service of mankind
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Abnormally Dangerous animal
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Owner knows or has reason to know the animal has a dangerous propensity abnormal to its class is strictly liable for harms resulting from the type of propensity that makes it dangerous
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General Rule Dangerous Activities
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Strict liability for activities that by their place and manner are unusual, extraordinary or inappropriate
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Ultrahazardous Activities
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activities which present a serious risk of harm, which can not be eliminated by the exercise of utmost care and the activity is not in common usuage
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Abnormally Dangerous Activities
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1) High degree of risk of harm
2) Likelihood the harm will be great 3) Inability to eliminate the risk by exercise of reasonable care. 4) Extent to which activity is not a matter of common usuage 5) Inappropriateness of activity in the place where it is carried out 6) Extent to which its value to the community is outweighed by its dangerous attributes |
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Posner/ Gerhard issue
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1) Conduct based decisions - considers negligence in the conducting of the acitivity
2) activity based decisions frequency, Time, Location, Method |
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Consumer Expectation Test
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Product is defective if it is dangerous to an extent beyond that expected by an ordinary consumer with ordinary knowledge common to the community as to its characteristcs
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Risk/Utility Test Gist
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Given the risks and benefits and alternatives - is society willing to live with the design or will they require a change.
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Public Nuisance/Private Action
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substantial and unreasonable interference with right held in common by general public in use of public facilities, in health safety or convenience
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Nuisance
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Interference with the use and enjoyment of land
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Private Nuisance
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Interference with the private interest in the use and enjoyment of land
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What cam liability be based on for private nuisance
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Intent( purpose or substantial certainty)
Negligence S/L Statutory violation |
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What constitutes substantial interference for private nuisance
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something that would offend a reasonable person
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What are the elements for a prima facie case for intentional misrepresentation
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1) Statement of Fact
2) Scienter - knowledge of its falsity or reckless disregard 3) Intent to induce reliance 4) justifiable reliance 5) Pecuniary harm |
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On what basis can their be liability for MIsrepresentation
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Intentional - Fraud or Deceit
Negligent Misrepresentation Innocent Misrepresentation |
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When is their a duty to disclose under misrepresentation
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1) Fiduciary Relationship
2) Active Concealment |
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When can statements of law form the basis for a misrepresentation claim
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1) Material misstatement of fact
2) maker purports to be an expert 3) Maker in fiduciary relationshp with recipient |
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When can an opinion form the basis of a misrepresentation claim
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1) Knowingly False Opinion
2) Unequal footing between the parties, ie. knowledge expertise, etc. |
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What are the elements for a prima facie case for intentional misrepresentation
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1) Statement of Fact
2) Scienter - knowledge of its falsity or reckless disregard 3) Intent to induce reliance 4) justifiable reliance 5) Pecuniary harm |
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On what basis can their be liability for MIsrepresentation
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Intentional - Fraud or Deceit
Negligent Misrepresentation Innocent Misrepresentation |
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When is their a duty to disclose under misrepresentation
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1) Fiduciary Relationship
2) Active Concealment |
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When can statements of law form the basis for a misrepresentation claim
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1) Material misstatement of fact
2) maker purports to be an expert 3) Maker in fiduciary relationshp with recipient |
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When can an opinion form the basis of a misrepresentation claim
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1) Knowingly False Opinion
2) Unequal footing between the parties, ie. knowledge expertise, etc. |
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What remedies are available under Misrepresentation
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1) Benefit of the Bargain - as if representation had been true
2) Out of Pocket Damages - as if representation had never been made. |
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What are the elements for a prima facie case for Negligent Misrepresentation
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False Statement of Fact
Intent to induce reliance Actual justifiable reliance Pecuniary harm |
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What approaches have been considered in evaluating third liability in misrepresentation
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1) Near Privity
2) Forseeability 3) Intent to benefit 3d p's - Better Reasoned Approach |
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What is private ordering in Misrepresentaiton Cases
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Idea that plaintiff's can privately order their own risk by:
using their own resources to verify data commissioning own audit bargaining for special security insisting an audit be conducted on its behalf. |
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What is Rule 552 - Intent to benefit 3dps rule
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One who negligently supplies false informaiton " for the guidance of others in their business transactions" is liable for economic loss suffered b the recipients in justifiable reliance on the information But liability created by the general principle is expressly limited to loss suffered:
1) By the person or one of a limited group of persons for whose beneft and guidance he intends to supply it and 2) through reliance upon it in a transaction that he intends the infornation to influence or knows that the recipient so intends or in a substntially similar transaction |
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What is the Gist of 552 - Misrepresentation
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A supplier of information is liable for negligence to a third party only if he or she intends to supply the information for the benefit of one or more third parties in a specific tranaction or type of transaction identified to the supplier.
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What is the liability to 3rd parties for:
Intentional Misrepresentation |
D will be liable for any reasonably foreseeable third parties
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What is the liability to 3rd parties for Negligent Misrepresentation
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D will be liable to those that D intended to influence in that particular transaction ( 522)
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What is Prima facie case for Tortious interference
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1) Interference
2) Intent 3) Causation 4) Damages |
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What constitutes interference for purposes of a TI claim
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P deprived of benefits of K - other party was induced to breach
P's own performance of K is made more expensive or burdensome |
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When is the offer of better terms likely to be considered an inducement to breach under TI
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Whan a particular competitor is targeted
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Can a terminable at will K be a basis for a TI claim
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Yes - untill attacked the K is voidable - not VOID so it is a valid K and is subject to attack
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What damages are available for a TI claim
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all actual damages: consequential, mental suffering, damage to reputation, punitive
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What is the requisite intent and BOP for an Interference with Prospective Advantage Claim
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Intentional and improper
BOP is on p to prove intereference was wrongful by some measure beyond the fact of interference itself. |
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What is required to prove that a statement is understood as defamatory
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CL/ holds p to scorn ridicule or contempt
If it lowers P in estimation of community or tends to deter 3dp's from associating or dealing with him |
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When can a publisher of defamatory content be held liable for republication
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1) privileged to repeat it
2) Intended them to repeat it 3) Repitition was reasonably foreseeable. |
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What types of information does the jury consider in determining damages
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1) Nature of the libel
2) Circumstances in which it was published 3) Circumstances relating to the person who published it. |
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Can recordings be libelous
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Yes - because they are permanent and can be widely distributed - even if not scripted
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What are some qualified privileges to Defamation
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Inferior Legislative bodies
Protection of private interests Interest of Recipient Interest of 3d party Common interest Well being of family members Protecion of public interests Fair Comment |
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How can qualified privileges be lost
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Lack of Honest belief in truth of statement
Malice in Publication Excessive Publication |
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What two types of malice appear in defamation
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Cl - Hatred Spite Ill will
Constitutional Malice - knowing falisity or reckless disregard for the truth of the statements. |
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What absolute privileges are available in defamation
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Judicial Proceedings - litigation privilege
Legislative Proceeding Executive and Admin. officers Spouses Publication required by law consent |
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What types of "negligent fault" are generally sufficient under a private person/public concern test
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Negligent Investigation of the Facts
Negligent in drawing inferences Negligent in phrasing the report |
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Private Person/Private Concern Prima Facie Case
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Statement of Fact understood as defamatory of the P
Published to a third party Causation No Damage proof required! - you get presumed and punitives without proof of actual malice |
