Duty or standard of care - strict duty to provide product free from any unreasonably dangerous defect in intended use - no requirement that D was negligent
Does D owe the duty
commercial supplier (those who cause a product to enter into the "stream of commerce") - subject to strict liability for defective product
manufacturers and assemblers
retailers, distributors and wholesalers
lessors - landlords are not strictly liable for furnishings or fixtures in rental property
sellers of used products - split
if D is not a commercial supplier, D is not strictly liable
furnisher of a service is not strictly liable - if mixed courts looked to dominant aspect of D’s activity
Does D owe a duty to this P?
P must have been injured by the defective product
P must have been a none-reckless user (SPLIT)
Breach of duty
D supplied a product with a manufacturing defect - product was manufactured in a different and more dangerous condition than the manufacturer intended
minority and CA - defective product and have to have injury
D supplied a product with a design defect - defect resulted from something going wrong in the design process
majority and restatement - defective product unreasonably dangerous - P must prove defect that caused injury was something other than what a reasonable person would expect in normal use
minority and CA - consumer expectation test (Barker test) -
P must prove product did not perform as safely as ordinary consumer would have expected when product is used in a reasonably foreseeable manner
feasible alternative test - D must prove the product’s design does not embody "excessive preventable danger"; following factors are considered:
gravity of danger
likelihood danger would occur
feasibility of sager alternative design
financial cost of improved design
adverse consequences to consumer and product from alternative design
most courts permit recovery under either of above tests
open and obvious - modern law - if danger is open and obvious not a bar to recovery
some courts follow the patent danger rule - if danger is open and obvious, and product is not unreasonably dangerous manufacturer has no duty to make product safer
was product misused - not a bar to recovery unless it is unforeseeable
P must show product was used as intended
Manufacturer has to expect some misuse and carelessness
Cars must be crashworthy
Was product modified -
majority - if third product modification makes a product unsafe, manufacturer relieved of liability, unless modification is foreseeable
minority - manufacturer is relieved of liability even if modification is foreseeable
product with a warning defect -
criteria for determining adequacy:
adequate indication of scope of danger
reasonable communication extent or seriousness of harm that could result from misuse
physical aspects of warning must be adequate to alert reasonably prudent person to danger
must indicate consequences of failure to follow directions
means of conveying warning must be adequate
intensity of language must be adequate
warning must be sufficiently prominent
no warning needed if reasonable user would expect of anticipate danger in product
warning must reach person at risk from danger
breach of duty to warn of an intrinsic risk - duty to warn of intrinsic risk which reasonable person would want to be informed about in order to decide whether or not to use product
manufacturer not strictly liable if unknown or reasonably scientifically unknowable risk
breach of duty because of after acquired knowledge of a previously knowable danger - once risk is discovered, manufacturer is subject to strict liability
duty to eliminate danger
or duty to provide suitable warning to future consumers, if manufacturer cannot reasonably eliminate danger
Actual cause - similar to negligence
defect must have existed when product left D’s control
if it is a warning defect, would have a adequate warning had prevented damage
defect must be a but for cause or substantial factor in causing P’s harm
Proximate cause - like negligence - consider extent, type, manner, time and space, and fairness
Damages - similar to negligence
personal injury and parasitic damages
pain and suffering, medical expenses, lost income, other economic losses
wrongful death action allowed if injury results in death
property damage to other property and parasitic damages
no punitive damages unless reckless pr intentional conduct
pure economic loss - SPLIT
majority and CA - no recovery even where defect created serious risk of injury that did not happen
minority - allows recovery
Defenses - similar to negligence
pure comparative negligence (EXAM) - P’s recovery is reduced by the amount of P’s injury which was caused by P’s own carelessness or fault
assumption of risk - P must have known of the danger and voluntarily and unreasonably continued to use the product
contributory negligence - must be knowing
Products liability based on negligence
Duty
duty or standard of care - reasonable care under the circumstances
does D owe the duty - duty may be owed by all commercial suppliers in distribution chain (manufacturer, commercial dealer, retailer)
D owe a duty to this P - duty owed to all persons foreseeably within the scope of use of the defective product
Breach of duty - negligence must have lead to D supplying an unreasonably unsafe product
D’s negligent conduct lead to supplying a product with a manufacturing defect - res ispsa loquitur may apply if it is a kind of defect that would not occur in the absence of negligence
Negligent conduct lead to a design defect - same as strict liability
Warning defect - same as strict liability
Balancing - same as negligence
likelihood and severity of injury v. Utility of product and alternatives
Actual cause - same as strict liability
Proximate cause - same as strict liability
Damages - same as strict liability
Defenses - same as strict liability
Intentional torts
general approach -
identify all possible torts; analyze the PF case for each tort suggested by the facts (act by D, intent, consequences, causation, damages, defenses or privileges)
common elements of intentional torts Prima Facie case:
act by D - an external manifestation of the actors will and some volitional movement by D of some part of his body
intent - the result that occurred, not to the act the D engaged in; D must have desired a particular result or have been substantially certain that such a result would occur
i. transferred intent - VERY TESTABLE -
intent may be transferred from person to person
transferred from tort to tort (in battery, assault, false imprisonment)
intent may be transferred both from person to person and from tort to tort
causation
actual cause - D’s act or something set in motion thereby must be a substantial factor in bringing about the injury
proximate cause - intentional tortfeasor is liable for all direct and indirect consequences of act whether foreseeable or not
damages - NO requirement P suffer any damages to recover nominal damages
if P does suffer damages, P can recover special and general damages
GR - If D intended to injure P, D may also be liable for punitive damages
intentional torts to P’s person
battery - an act intending to cause and resulting in harmful or offensive contact
PF case: act, intent, harmful or offensive contact, causation
act must have brought about harmful or offensive contact to P
D must have desired to cause a harmful or offensive contact or believe that such a result was substantially certain to occur (intent)
Harmful or offensive contact must occur
harmful contact - pain, injury, disfigurement, or impairment of any bodily organ or function
offensive contact - something that offends a reasonable person’s sense of dignity
must be actual physical contact with P’s person
causation - touching must be caused by D’s act or force; no liability if D is not a substantial factor in activating force causing injury
damages - NOT A PART of P’s PF case for battery
assault - an act intending to cause and result in reasonable apprehension of immediate harmful or offensive contact to P’s person
PF case: act, intent, apprehension of immediate harmful or offensive contact, causation
act - words alone are not enough, there must be some volitional movement of the body
intent - D must desire or believe with substantial certainty that his act would cause apprehension of immediate harmful or offensive contact with P’s person
reasonable apprehension of immediate harmful or offensive contact
reasonable - no recovery if P has exagerated fear of contact
P must be aware of apprehension - fear not required
Must be threat of immediate harm rather than future harm
P must apprehend contact with P’s person - D must have actual or apparent ability to inflict contact
causation - same as battery
damages - same as battery (not a part of PF case)
false imprisonment - D act intending to cause and result in confining or restraining P to bounded area
PF case - act, intent, confinement or restraint of P to a bounded area, causation, few courts - lack of consent
act - words threatening physical force may be enough
intent - did P desire or was D substantially certain that his act would confine or restrain P to a bounded area
confined or restrained in a bounded area
P must have been unlawfully confined or restrained
P must know of confinement at time confined
Must not be reasonable means of escape known to P
Bounded means P’s freedom of movement in all directions in a specific area must be limited
causation - same as battery
damages - same as battery (not a part of PF case) - can recover for injuries sustained in reasonable attempt to escape - no recovery for injuries in unreasonable attempt to escape
intentional infliction of emotional distress - extreme and outrageous conduct by D intending to cause and resulting in severe emotional distress
PF case - act (extreme and outrageous conduct), intent, causation, damages
act- extreme and outrageous conduct
conduct that transcends all bounds of decent behavior or offends against the generally accepted standards of decency and morality
recitation of facts to average community member would lead him to exclaim "Outrageous"
exceptions - special relationship between P and D (common carriers, public utilities, innkeepers - all have higher standard)
exception - knowledge of P’s sensitivity may make words alone actionable
extreme business conduct, especially credit practices/debt collection (consider purpose of D’s conduct, identity of D, whether P owes any debt, whether creditor has trouble locating debtor)
misuse of authority may be actionable in some circumstances
insults and attacks based on race or gender
intent - D intends to cause or recklessly causes P sever emotional distress
satisfied if D desired or was substantially certain to cause P severe emotional distress; also if D acted recklessly (deliberate disregard of a high probability that his actions would cause emotional distress)
intent or recklessness may be inferred where D knows that P is particularly sensitive or susceptible to emotional distress
NO transferred intent
D may be liable to bystander if emotional distress is caused through relationship to injured party (P must prove: P was present, P was a close relative, D knew P was present)
Majority allows recovery for mishandling of a corpse
causation - D’s extreme and outrageous acts must intentionally cause severe emotional distress to P
damages - P must suffer severe emotional distress (more than reasonable person could be expected to endure)
GR - compensatory damages are recoverable
Punitive damages are recoverable
Defenses to intentional torts to persons
Consent - majority - D must prove P consented
actual consent by P; P’s consent if any of the following:
consent induced by fraud
consent obtained by duress (physical force or threats against P or members of P’s family)
consent by mistake (of law or fact if D caused and was aware of mistake)
express consent to a crime (some courts - P cannot consent to a crime)
P’s consent implied by law - may be implied by law if:
P is unconscious or other wise unable to consider matter and give consent
Immediate decision is necessary
There is no reason to believe P would not consent if able to do so AND
Reasonable person in P’s position would consent
D’s conduct went beyond consent given - consent not effective if D goes beyond consent given
Did P have capacity to consent - incompetents, drunks, and very young children are not capable of consent without parent or guardian
Insanity - majority - insanity is not a defense
self defense - D who reasonably believes that he is unwarrantedly attacked has a privilege to protect himself, using only the force that a reasonable person would use under the circumstances
objective test - how situation would have appeared to reasonable person in same or similar circumstances
reasonably mistake does not validate defense
use of deadly force - force likely to cause death or serious bodily harm;
D can use deadly force if D reasonably believes:
P is about to inflict an immediate harmful or offensive contact upon D AND
Such contact would inflict death or serious bodily harm
duty to retreat - majority - "western rule" - no duty to retreat before using deadly force (minority says there is duty to retreat if can be done safely)
use of nondeadly force - force not likely to cause serious bodily harm or death
D privileged to use nondeadly force if D reasonably believes that:
P is about to inflict an immediate harmful or offensive contact upon D AND
D uses only force that appears reasonably necessary to prevent the threatened contact
D have duty to retreat - GR - no duty to retreat or comply with any demand
D use threats of force - D has privilege to threaten more force than he would be privileged to use in self defense; D must not have any reason to believe that his threats will do more than place P in apprehension
Limits on D’s right to self defense
if D knows danger has ended no privilege of self defense
no privilege of self defense if D uses force beyond what he is privileged to use
D is liable for intentionally or negligently injuring a third person while using privileged force against P
If P is using privileged force against D, D has not privilege of self defense
defense of third persons - force reasonable under the circumstances
use of deadly mechanical devices - this type of use (trap guns) is only privileged if P’s unprivileged intrusion actually constitutes a threat of death or serious bodily harm to D or D’s family
did D use nondeadly mechanical devices - entitled to this only if customary or reasonable and necessary under circumstances AND adequate warning has been given or posted
use of nondeadly force - can be used if P’s intrusion is not privileged, D believes reasonable force is needed to prevent or end P’s intrusions
D use threats of force - is privileged if D has no reason to believe such threats would cause anything other than fright or apprehension in P
Defamation - a cause of action exists if published statements to a third person are capable of being understood in the defamatory sense, if even the statements were directed to someone else but could be reasonably mistaken to have been about P, and there is sufficient actual and proximate causation.
defamation published to a third person
publication to any third person may suffice regardless of any relationship to P or D
publication must be intentional or negligent
CL liability of other involved in publishing:
liability of publisher: strictly liable
republisher: equally liable with original publisher
disseminator: liable only if he knew or had reason to know of presence of defamation in product being loaned or sold
statement must be capable of being understood in the defamatory sense
Majority: test is whether the statement tends to lower P’s reputation or deters others from associating with P
Minority: test is whether statement exposes P to hatred, contempt and ridicule
Statement must injure P "in the eyes of a substantial and respectable minority"
Also defamatory if the statement could be reasonably interpreted by others as having defamatory meaning
if a third party reasonably interpreted the statement as concerning the P even though D was referring to someone else of the same name, P may maintain an action for defamation
there is no cause of action for defamation for the deceased
any recognized entity (corporation or partnership) may be defamed and can sue
group libel - individual action will only lie if P can show publication can reasonably be interpreted as defaming P
The defamatory statement must be the actual and proximate cause of P’sdamages
same as negligence
Damages
Special damages - the loss of something having economic or pecuniary value
a P suing in libel (written) need not prove special damages
defamation broadcast by radio or television is libel
CA: defamation broadcast by radio or television is slander
in an action against the media, it must be shown that the defamation was intentionally or negligently published
Special damages need not be shown
General damages are presumed
if P is suing in slander (oral) must plead special damages unless defamation falls into one of the following categories: allegations
of commission of a crime
that harm trade or business
of a loathsome disease
of unchastity in a woman
General damages - compensate for harm to P’s reputation
Punitive damages - must show the defamation was made with common law malice, such as hatred, ill will, or spite
Nominal damages - symbolic, shows the D is guilty of defamation but that the words did not hurt (because the speaker was not credible or because the P had a strong reputation)
libel or slander
libel
slander
Defenses
Truth - a complete defense to civil libel
test: if the words would have the same effect upon the mind as that which the pleaded truth would have produced
not often used as a defense
privileges
absolute privileges - if the occasion gives rise to an absolute privilege, there will be no liability (often reserved for federal and state legislators)
qualified (conditional) privilege - a communication made by one person to another upon a subject in which both have an interest
if it can be demonstrated that D spoke with malice qualified privilege defense does not work
malice (CL) - hatred, spite or ill will
malice (Constitutional meaning) - knowledge that the statement was false or reckless; disregard of whether it was false or not
judicial privileges
legislative privilege
executive privilege
domestic privilege
Consent - a complete defense
publication required by law
common law conditional or qualified privilege
common law conditional privilege
public interest privilege
loss of common law conditional privilege
common law malice
constitutional malice
excessive publication
other common law privileges
privilege of fair comment and criticism
privilege of fair and accurate report
privilege of fair and accurate comment
Constitutional defenses
based on First Amendment free speech and press
P’s status
characteristics of public person v. Private person
public person
public official
ii. public figure
limited purpose public figure
D’s publication is constitutional privileged if P is a public person
If P is a private individual does publication involve a matter of public concern