April 7, 1999

EXAM

• Will have a question on defamation - privacy stuff will probably be worked into the defamation question
• More on this later

HIPO - Hyperbole (A figure of speech in which the expression is an evident

exaggeration of the meaning intended to be conveyed,), Insult, Parody, Opinion

TEST - does statement contain false assertion of fact? If yes, statement is actionable

Factors -

1. verifiable
2. common usage or meaning of certain term
3. context of the statement (published in a newspaper, part of an investigation, etc.)
4. the broader context or setting in which the statement appears

rhetorical hyperbole - a statement which is used to make a point, like insult

false statement of fact and statement was made with actual (constitutional) malice (knowing falsity or reckless disregard for the truth)

can have defamation of a product

Milkovich v.. Lorain Journal Co.

RULE - is statement sufficiently factual to be susceptible of being proved true or false? If so, then is treated as a defamatory statement

• emphasis is verifiability of statement - whether it can be proven true or false

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April 13, 1999

Test is on Monday

Review is going to be Tuesday May 11, 10-12 noon.

New topic: invasion of privacy

Review of defamation

Common law malice - ill will or evil intent

Tort of privacy:

Public disclosure of private facts

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April 19, 1999

Review - Tuesday, May 11^th, 10-12 Bannan 142

In order to have actionable intrusion into P's private life after P dies, P must have objected to intrusion while alive.

Summary of prima facie case of intrusion into Plaintiff's private life or affairs:

1. highly offensive intrusion by D into P's private life
2. intent or negligence
3. causation

[no special damages or publication needed]

4. defenses

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April 21, 1999

EXAM info:

2 or 3 essay questions; three hours; no multiple choice. We will have 3.5 hours to complete exam.

There will not be a major question on negligence - it will be included into the products liability mainly.

• exam will cover all topics we have learned this semester:

• negligence
• vicarious liability - probably built into a question
• strict liability
• products liability - strict and negligent (this is where negligence will need to be explained)
• intentional torts - battery, assault, false imprisonment, IIED
• defamation and privacy

VICARIOUS LIABILITY

• can be added to any question - as long as there is an employee acting for the employer
• just say that person is an employee acting within scope of employment
• most likely will be in question somewhere

STRICT LIABILITY

• might be there; might not
• if we see animals running around causing injury we know there will be strict liability

ABNORMALLY DANGEROUS ACTIVITES

• someone exploding, dynamite, fireworks, fumigating, gas tanker
• something she says that is highly flammable or very dangerous - this will point out that we should do abnormally dangerous activity analysis
• most likely will be in products liability situation; will have to see if it is defective product, and then do analysis

• there will be a question on this for sure - we spent lots of time on it
• do both strict products liability analysis AND negligence analysis
• could also have intentional torts in this question - people hitting each other, threatening, etc…

• there will be a separate question on this
• usually privacy issues - at least false light; often intrusion (some one sneaking around);
• might have one fact true among facts that are false - this is how privacy fits in - publication of private facts
• often has IIED in this question

Make sure we know negligence:

Duty - act or omission to act

Standard of care (usually reasonable care under the circumstances)

Breach of duty

Actual Cause

Proximate Cause

Extent

Type

Manner

Time and distance

Policy

Damages

PRODUCTS LIABILITY REVIEW - very likely on exam

• start with products liability on exam, before doing negligence analysis
• that way lots of the analysis will be done

Standard of care - strict duty to provide a non defective product for intended use

We focus on product - not the person

• usually is manufacturing defect where this comes into play
• even if manufacturer did all safety stuff, still liable
• fact that the product had an inadequate warning, shows that manufacturer acted unreasonably by putting it on the market

Look at whether D owes a duty - commercial supplier - if so, then subject to strict liability

• often a manufacturer or retailer
• could be a lessor
• seller of used products - split as to whether this person liable or not
• if question between product or service, look at predominant purpose
• more professional the service is, the less strictly liable you are (doctors)

Does D owe duty to this P - just say P was injured by this product

• if a rescuer, there is a split about whether a rescuer can recover as well

KEY - breach of duty section

• always consider if any of the three possible defects are possible:

• manufacturing defect (will say there was a latent defect), design defect, warning defect

• want to do the two tests - Restatement 402A: defective product unreasonably dangerous, Cronin test (CA) - defective test - defective product causing injury
• almost always there will be BOTH design and warning defect in products liability question
• design defect - don't need to use Restatement. USE both CA tests (Barker) - 1. Consumer expectation test (plaintiff's burden - say this) - whether product performed in a way a reasonable consumer expected it to; 2. Excessive preventative danger test - (this is defendants burden) - bunch of factors to consider: (use facts to trigger memory):

• gravity of danger
• likelihood of danger
• feasibility of alternative design
• financial cost of improved design
• adverse consequences to consumer from alternative design

• check to see if it was open and obvious - say under modern law, that it is not a bar to recovery (not likely on exam)
• want to check whether product was misused - not a bar to recovery unless unforeseeable
• modification - look at facts to see if it was foreseeable or not

We will be in a Roland jurisdiction - meaning reasonable care under the circumstances for invitees and guests, etc….

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April 26, 1999

Products liability review

See tape

If doctor in problem - usually learned intermediary issue

Proximate cause - extent, type, manner

As long as there is no reason that the dealer, retailer should have found out about defect, it does not cut off manufacture's liability. If retailer knows something is danger and did not do anything about it, then manufacturer is cut off from liability.

Split on recovery for pure economic loss

Pure comparative negligence, assumption of risk, contributory negligence are valid defenses

Now do products liability based on negligence

SOC - reasonable care under the circumstances

Balancing - risk of product v. utility of product