I.

Damages
A. General Information
1. Damages used to deter a from engaging in similar torts
2. To restore back to pre-tort
3. General Deterrence
A goal of criminal law generally or of a specific conviction & sentence, to
discourage people from committing crimes
4. Specific Deterrence
A goal of a specific conviction & sentence to dissuade the offender from
committing crimes in the future
5. Present Value
Sum of money that w/ compound interest, would amount to a specific sum at a
future date
6. will not be permitted to return to court later to collect for more damages that may
arise
B. Compensatory Damages
1. restores a plaintiff to pre-tort status is permitting the recovery of compensatory
damages. Compensatory damages are typically comprised of economic losses and
noneconomic losses.
a. Special Damages
Economic losses, are losses that are readily subject to objective
measurement, include pecuniary losses
b. Pecuniary Losses (Economic)
i. lost earnings income, including wages or salary, that the plaintiff was
unable to earn in the past because of the tortious injury
ii. loss or impairment of future earning capacity income, including
wages or salary, that the plaintiff would have earned in the future if the
plaintiff had not been tortiously injured
iii. past and future medical expenses expenses for medical treatment
or healthcare.
c. General Damages
i. past and future physical pain and suffering physical pain and
suffering about which the plaintiff is aware as a result of the plaintiffs
physical injuries
ii. Past and future mental pain emotional distress caused by the
plaintiffs injuries
iii. Permanent disability and disfigurement injuries that will
indefinitely prevent a plaintiff from performing some or all of the duties
that could be performed before the injury or physical disfigurement
caused by tortious conduct
3. Consortium Damages
A loss of consortium claim is an action that the plaintiff or injured persons
spouse, child, or parent is typically entitled to bring based on injuries to him or
her and deriving from the injuries to the spouse or parent.
4. Spousal consortium
damages typically include recovery for loss of sexual relations, society,
companionship, affection, and financial support.
5. Parental consortium
damages typically include recovery for loss of society, affection, and
companionship.
6. Filial consortium


damages recoverable by a child for the loss of a parent, include the childs
society, affection, and companionship given to a parent.
7. Derivative
Most consortium claims must be brought along with the injured partys cause
of action, it arises by virtue of the injury to the plaintiff or injured person
8. Loss of Enjoyment AKA Hedonic Damages
the detrimental alterations of a persons life or lifestyle or a persons inability to
participate in the activities or pleasures of life that were formerly enjoyed
9. Cases
a. loss of enjoyment of life is recoverable as a separate element of general
damages that may be included as a separate item on a jury verdict form. (Mcgee
v. AC & S, Inc)
b. Courts may order a remittitur of damages when a jurys assessment of
damages is excessive based on the evidence. (Richardson v. Chapman)
i. remittitur: a means by which the court can control an excessive jury
award
ii. additur: courts order increasing the jurys award in order to avid a new
trial on inadequate damages
c. look at the lessor of the two to rebuild/replacement cost or market value (In re
September 11th Litigation)
d. The collateral source rule prevents the introduction of evidence of payments
received by an injured party from sources collateral to the wrongdoer.
(Montgomery Ward & Co, Inc. v. Anderson)
i. Collateral-source rule: prevents a tortfeasor from benefiting from
payments made to the for injuries: Workers comp, insurance
e. In order to recover for permanent injuries, a plaintiff has a duty to mitigate
those damages by submitting to treatment that would cure the damages if a
reasonable person would do so under the same circumstances. (Zimmerman v.
Ausland)
i. Mitigation of damages doctrine: prevents a from claiming damages for
a permanent injury if the permanency of the injury could have been
avoided by submitting to treatment when a reasonable person would have
done so.
B. Punitive Damages
1. damages that are awarded above and beyond compensatory damages for the distinct
purpose of punishing a defendant for engaging in particularly egregious conduct
2. Sometimes called exemplary or vindictive damages
3. Awards are often constrained by constitutional consideration
4. To deter the from doing it again and set an example for others
5. Cases
a. The Due Process Clause of the 14th Amendment of the United States
Constitution (Constitution) limits the amount recoverable in punitive damages
when the damages constitute grossly excessive punishment for a tortfeasor
(BMW of North America, Inc. v. Gore)
b.
C. Nominal Damages
1. Damages are awarded but suffered no substantial loss or injury
2. It is a trivial amount of money example $1
3. It is to recognize the s legal interest were invaded/violated, despite the fact the no
real loss was suffered
II. Wrongful Death & Survival


A. Wrongful Death Statue
1. by statute, every jurisdiction permits recovery for the tortiously caused death of
another by their family spouse kids, must prove liability/negligence
2. A wrongful death action is a new, independent statutory cause of action that inures to
the benefit of statutorily defined plaintiffs.
3. wrongful death statutes typically allow for specifically defined family members of the
deceased to recover for injuries caused by the death.
4. Loss of enjoyment loss of society
5. Wrongful Death Statutes
were enacted so that defined beneficiaries (spouse/children) of one tortiously
killed could bring a tort action for injuries caused by that death
6. Damages: may have hard money
7. defenses: contributory negligence & assumption of risk
7. Cases
a. The Supreme Court overturns its previous holding in The Harrisburg and
allows for a wrongful death action in maritime law. (Moragne v. States Marine
Lines Inc.)
i. Maritime Law: governing marine commerce & navigate the carriage of
sea of persons/property & marine affairs in general
b. Under Nebraska law, the loss of society, comfort and companionship are
recoverable for a childs death in a wrongful death suit. (Selders v. Armentrout)
B. Survival Statutes
1. Permits specified causes of action, which either may have been brought by a prior
to her death or against a prior to his death
2. were enacted to permit a decedents estate to bring any actions that were
extinguished by the decedents death, gone but their estate
3. Loss wages, medical expenses, if both tortfeasor dies goes after their estate
4. Cases
a. Damages for loss of property, loss of wages and the pain and suffering of a
decedent are allowed under survival statutes when the decedent later dies from
injuries which created the cause of action. (Murphy v. Martin Oil Co.)
III. J oint Tortfeasor
A. Joint & Liability of
1. is a form of liability that is used in civil cases where two or more people are found
liable for damages, acting in concert is main idea, the drag racing example
2. winning plaintiff in such a case may collect the entire judgment from any one of the
parties, or from any and all of the parties in various amounts until the judgment is paid in
full. In other words, if any of the defendants do not have enough money or assets to pay
an equal share of the award, the other defendants must make up the difference.
3. Vicarious Liability: doctrine that imposes responsibility upon one person for the
failure of another, with whom the person has a special relationship (such as parent/child,
employer and employee, or owner of vehicle and driver), to exercise such care as a
reasonably prudent person would use under similar circumstances.
4. Joint tortfeasor
2 or more tortfeasors who contributed to the claimants injury & who may be
joined as s in the same lawsuit
5. 15
When a persons are liable because they acted in concert, all persons are jointly
& severally liable for the share of comparative responsibility assigned to each
person engaged in concerted activity (concert: induced & encouraged the tort)
6. Joint & Several liability


liability that may be apportioned either among 2 or more parties OR to only one
or a few members of the group, at the adversarys discretion, each liable party is
individually responsible for the entire obligation, but a paying party may have a
right of contribution and indemnity from nonpaying parties, one injury with two or
more causes
7. Statutory Limitations
Many states have limited the joint liability doctrine by statute in cases based on
fault. Two of the most common types of statutes abolish joint liability either (i) for
those tortfeasors judged to be less at fault than the plaintiff, or (ii) for all
tortfeasors with regard to noneconomic damages (e.g., pain and suffering). The
liability of a tortfeasor in these situations is proportional to his fault.
8. Cases
a. When two or more individuals are wrongdoers acting in concert and their
actions injure a third party, all may be liable for concurrent negligence, regardless
of which of the individuals directly caused the injury. (Bierczynski v. Rogers)
b. Joint and several liability is still applicable when contributory negligence is
replaced by comparative negligence. (Coney v. J.L.G. Industries)
c. that the original tortfeasor is not jointly & severally liable for further agrriavation
of an original injury caused by a subsequent tortfeasors medically negligent
treatment of the injury caused by the original tortfeasors negligence (Banks v.
Elks Club Pride of Tennessee)
B. Satisfaction & Release
1. Satisfaction
If plaintiff recovers full payment from one tortfeasor, either by settlement or
payment of a judgment, there is a satisfaction. She may not recover further
against any other joint tortfeasor. Until there is a satisfaction, however, she may
proceed against other jointly liable parties.
2. Release
A release is a surrender of plaintiffs cause of action against the party to whom
the release is given. In most states, a release of one tortfeasor does not
discharge other tortfeasors unless expressly provided in the release agreement.
Rather, the claim against the others is reduced to the extent of the amount
stipulated in the agreement or the amount of consideration paid, whichever is
greater.
3. Covenant not to sue
entered into by a party who had a cause of action at the time of making it, and by
which he agrees not to sue the party liable to such action.
4. Apportionment of Liability 24a
A settlement is a legally enforceable agreement in which a claimant agrees not
to seek recovery outside the agreement for specified injuries or claims from
some or all the persons who might be liable for those injuries or claims.
5. Mary Carter agreement
a. A contract (usually a secret one) by which one or more, but not all,
codefendants settle with the plaintiff and obtain a release, along with a provision
granting them a portion of any recovery from the nonparticipating codefendants.
In a Mary Carter agreement, the participating codefendants agree to remain
parties to the lawsuit and, i no recovery is awarded against the nonparticipating
codefendants, to pay the plaintiff a settled amount. Such an agreement is void
as against public policy in some states but is valid in others if disclosed to the
jury.


b. is typically accomplished by the settling tortfeasor guaranteeing the plaintiff a
minimum recovery, regardless of the outcome of the suit against the nonsettling
defendants. The settlement then provides that the more that is recovered by the
plaintiff from the nonsettling tortfeasors, the less that the settling tortfeasor is
required to pay.
6. Peremptory Challenges
has the right to dismiss a potential juror during jury selection w/o having to state
a reason, each party to a lawsuit is typically given the same number of
challenges
7. Cases
a. P may not recover fully from one P and then proceed to recover from another
P since P has already received satisfaction. (Bundt v. Embro)
b. The court will look to the intent of the parties to the contract when determining
if a covenant not to sue releases all tortfeasors who may have liability. (Cox v.
Pearl Investment Company)
c. the Texas Supreme Court has voided the validity of Mary Carter agreements
based on public policy considerations. (Elbaor v. Smith)
C. Contribution & Indemnity
1. Apportionment of Liability 22. Indemnity **
a. When two or more persons are or may be liable for the same harm and one of
them discharges the liability of another in whole or in part by settlement or
discharge of judgment, the person discharging the liability is entitled to recover
indemnity in the amount paid to the plaintiff, plus reasonable legal expenses, if:
1. the indemnitor has agreed by contract to indemnify the indemnitee, or
2. the indemnitee
i. was not liable except vicariously for the tort of the indemnitor, or
ii. was not liable except as a seller of a product supplied to the
indemnitee by the indemnitor and the indemnitee was not
independently culpable.
b. A person who is otherwise entitled to recover indemnity pursuant to contract
may do so even if the party against whom indemnity is sought would not be liable
to the plaintiff.
-when someone is liable but didn't do anything wrong (emp v. empr)
2. 23. Contribution **
a. When two or more persons are or may be liable for the same harm and one
of them discharges the liability of another by settlement or discharge of judgment,
the person discharging the liability is entitled to recover contribution from the
other, unless the other previously had a valid settlement and release from the
plaintiff.
b. A person entitled to recover contribution may recover no more than the
amount paid to the plaintiff in excess of the persons comparative share of
responsibility.
c. A person who has a right of indemnity against another person under 22 does
not have a right of contribution against that person and is not subject to
liability for contribution to that person.
-when a tortfeasor pays more than their part and sues the other guilty
party for their part
3. Difference between contribution & indemnification**
Contribution is defined as a sharing of the cost of an injury as opposed to a
complete shifting of the cost from one to another, which is indemnification.
Common liability is required between a party seeking contribution and the party


from whom it is sought. . . .Principles of indemnification and contribution are not
interchangeable. Indemnification is distinguishable from the closely related
remedy of contribution in that the latter involves a sharing of the loss between
parties jointly liable.
4. Cases
a. In order to receive contribution, joint liability must be present. (Yellow Cab Co
of D.C v. Dreslin)
b. The common law doctrine of joint and several liability holds joint tortfeasors
responsible for the plaintiffs entire injury, allowing plaintiff to pursue all, some, or
one of the tortfeasors responsible for his injury for the full amount of the damages
(Sakellariadis v. Campbell)
c. The right to indemnity is allowed only when the indemnitee is vicariously or
derivatively liable for the wrongful act of another. (Slocum v. Donahue)
D. Apportioning Damages among tortfeasors
1. Cases
a. A jury must determine if damages are available when a decedent is killed by
the negligence of defendant, but decedent would have died or been seriously
injured regardless of the negligence. Where plaintiffs own actions/fault would
have resulted in injury/damage, defendant only liable for that damage his
negligence caused in addition to or as compared to the damage that was or
would have been caused by the plaintiffs own (Dillion v. Twin State Gas &
Electric Co)
b. Four categories of tortfeasors may be generally recognized as being liable
jointly and severally: 1. The actors knowingly join in the performance of the
tortious act or acts. 2. The actors fail to perform a common duty owed to the
plaintiff. 3. There is a special relationship between the parties (i.e. employer-
employee, joint venturers, etc.) 4. Although there is no concurrent action,
nevertheless the independent acts of several actors concur to produce indivisible
harmful consequences. Before recovery based on joint and several liability is
permitted, the courts must find first that the harm for which the plaintiff seeks
damages in indivisible. (Michie v. Great Lakes Steel Division, National Stell
Corporation)
c. is when two or more persons acting independently cause the harm to a 3rd
person through consecutive acts of negligence closely related in point of time
(Bondy v. Allen)
IV. Immunities
A. Immunity
1. is an absolution from tort liability based on a s status in society or with the
2. Privilege v. Immunity
circumstances v. status
3. Important to society as a whole that the benefit of inldulation from suit outweighs the
injury caused by any tortious conduct
4. may actually committed the tort but gets immunity because of status in the
relationship
B. Families
1. Husband-Wife
a. both husbands and wives may recover damages for loss of their spouses
consortium or services because of injuries to the spouse from defendants
tortious conduct, whether intentional, negligent, or based on strict liability.
2. Parents Action


a. A parent may maintain an action for loss of the childs services when the child
is injured as a result of defendants tortious conduct, whether such conduct is
intentional, negligent, or based on strict liability.
b. Most states have abolished interspousal immunity. Either spouse may now
maintain a tort action against the other
3. Child Actions
a. A child has no action in most jurisdictions against one who tortiously injures
his parent.
b. child v. parents doesn't usually happen, the parents have to pay anyway
c. A slight majority of states have abolished parent-child immunity; however,
these states generally grant parents broad discretion in the parents exercise of
parental authority or supervision. The remaining states retain parent-child
immunity but do not apply it in cases of intentional tortious conduct and, in many
of these states, in automobile accident cases (at least to the extent of
insurance coverage)
4. Cases
a. Restatement (Second) Torts 895F (1979) provides: 1. A husband or wife is
not immune from tort liability to the other solely by reason of that relationship.
2. Repudiation of general tort immunity does not establish liability for an act or
omission that, because of the marital relationship, is otherwise privileged or is not
tortious. (Heino v. Harper)
b. parental Immunity At common law, the parental immunity doctrine operated
as a nearly absolute bar to suit by a child for personal injuries caused by a
parent, no matter how wrongful the parents conduct (Zellmer v. Zellmer)
C. Charities
1. The majority of jurisdictions have abrogated the common law rule of charitable
immunity either by statute or decision. Even where such immunity still exists, it is riddled
with exceptions.
2. Cases
a.
D. Employers
1. Workers Compensation
a. provide a no-fault remedy to employees suffering work-related & occupational
injuries
b. provides a certain percentage of their income lost as a result of work-related
injuries and medical expense
2. Provide an immunity from a workers suit alleging injury cause by the employers
negligence
3. Cases
a. Where, as here, an employee is injured on the employers premises during
regular working hours, when the injury occurs while the employee is engaged in
an activity which the employer has requested her to undertake, and when the
injury-causing activity is of service to the employer and benefits the employers
business, the conditions imposing liability for compensation under Labor Code
section 3600 are met as a matter of law, and it is immaterial that the activity
causing the injury was not related to the employees normal duties or that the
circumstances surrounding the injury were unusual or unique (Eckis v. Sea World
Corp.)
b. The Act covers injuries sustained from risks incidentally and directly connected
to that particular employment (Sisk v. Tar Heel Capital Corp)
E. Local & State Government


1. State: substantially waived their immunity from tort actions to the same extent as the
federal government. Thus, immunity still attaches for discretionary acts and for
legislative and judicial decision making.
2. Local: 1/2 the states have abolished local immunity by statute or judicial decision to
the same extent that they have waived their own immunity. Hence, immunity is
abolished for everything but discretionary acts and policy decisions.
3. Historically, the doctrine of governmental immunity provided a valid defense against
tort liability for all local, state, and federal governments. In order to be sued in tort, the
government had to give permission to be sued, with that permission granted by statute.
However, as discussed in Ayala, this notion of governmental immunity has eroded over
the year
4. 895c Local Government Entities
1. Except as stated in Subsection 2. a local government entity is not immune
from tort liability.
2. A local governmental entity is immune from tort liability for acts and omissions
constituting
a.the exercise of a legislative or judicial function, and
b. the exercise of an administrative function involving the determination of
fundamental governmental policy.
3. Repudiation of general tort immunity does not establish liability for an act or
omission that is otherwise privileged or is not tortious.
5. 895D(3)
A public officer acting within the general scope of his authority is not subject to
tort liability for an administrative act or omission if
a. he is immune because engaged in the exercise of a discretionary
function,
b. he is privileged and does not exceed or abuse the privilege, or
c. his conduct was not tortious because he was not negligent in the
performance of his responsibility.
6. Public Duty Doctrine
Where municipal immunity has been abolished, many courts apply the this to
limit the government liability. A duty that is owed to the public at large, such as
the duty of police to protect citizens, and no liability exists for failure to provide
police protection in the absence of a special relationship between the
municipality and the citizen that gives rise to a special duty. (not an affirmative
defense)
7. Special relationship
a. an assumption by the municipality, through promises or actions, of an
affirmative duty to act on behalf of the party who was injured;
b. knowledge on the part of the municipalitys agents that inaction could lead to
harm;
c. some form of direct contact between the municipalitys agents and the injured
party;
d. that partys justifiable reliance on the municipalitys affirmative undertaking
8. Sovereign Immunity
a. govt immunity from being sued w/n its own courts w/o its consent
b. immunity from being sued in federal court by the states own citizen
9. Cases
a. The defense of governmental immunity is no longer applicable in Pennsylvania
(Ayala v. Philadelphia Board of Public Education)


b. Police authorities are not liable for failing to provide special protection to
individuals threatened with harm (Riss v. New York)
c. When a municipality voluntarily assumes a duty and negligently performs the
duty, the municipality may be held liable if its conduct somehow increased the
risk to defendant (DeLong v. Erie County)
F. United States Government
1. By virtue of the Federal Tort Claims Act, Title 28 U.S.C., the United States has
waived immunity for tortious acts. Under its provisions, the federal government may
now be held liable to the same extent as a private individual
2. United States Still Immune for Certain Enumerated Torts
Immunity still attaches for assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel and slander,
misrepresentation and deceit, & interference with contract rights
3. 895D(2)
Public officers provides that a public officer acting within the general scope of his
authority is immune from tort liability for an act or omission involving the exercise
of a judicial or legislative function.
4. FTCA Federal Tort Claims Act
waives the sovereign immunity of the United States under limited circumstances
5. Case
The discretionary function exception to the FTCA disallows civil suit against the
United States when the conduct complained of was based upon the exercise of a
discretionary function or duty (Deuser v. Vecera)
V. Vicarious Liability **
1. That one person commits a tortious act against a third party, and another person is
liable to the third party for this act
2. This may be so even though the other person has played no part in it, has done
nothing whatever to aid or encourage it, or indeed has done everything possible to
prevent it. This liability rests upon a special relationship between the tortfeasor and the
person to whom his tortious conduct is ultimately imputed.
A. Respondent Superior **
1. employer will be vicariously liable for tortious acts committed by her servant/
employee if the tortious acts occur within the scope of the employment
relationship
2. an employer is ordinarily liable for the injuries its employees cause in the
course of their work
3. imposes liability whether or not the employer was itself negligent, and whether
or not the employer had control of the employee. The doctrines animating
principle is that a business should absorb the costs its undertakings impose on
others
4. Ratification
5. Punitive Damages
6. Doing what they should be, on the premises, following the duties, is it during business
hours, can deviate from the scope and then go back
7. Control is the key word, how much control they have over the subcontractor
8. cases
a. the franchisor is vicariously liable for the tort of the conduct of the
franchisor when it in fact has control or right of control over the daily
operation of the specific aspect of the franchisees business that is
alleged to have caused the harm. The d did not have control of the
employees intention. (Papa Johns International v. McCoy)


B. Independent Contractors
1. not be vicariously liable for tortious acts of her agent if the latter
is an independent contractor. Two broad exceptions exist, however:
a. engaged in inherently dangerous activities, e.g., excavating next to a
public sidewalk, blasting.
b. The duty, because of public policy considerations, is simply
nondelegable, e.g., the duty of a business to keep its premises safe for
customers
2. Independent Contractor
one who engages to perform a certain service for another according to his
own methods and manner, free from control and direction of his employer
in all matters connected with the performance of the service except as to
the result thereof
3. 423 Making or Repair of Instrumentalities Used in Highly Dangerous
Activities
One who carries on an activity which threatens a grave risk of serious
bodily harm or death unless the instrumentalities used are carefully
constructed and maintained, and who employs an independent contractor
to construct or maintain such instrumentalities, is subject to the same
liability for physical harm caused by the negligence of the contractor in
constructing or maintaining such instrumentalities as though the employer
had himself done the work of construction or maintenance
4. Ordinary with supervision or with out, who supplies the tools and other em., where is
the job being done at, is it part of the regular business, is there a K and what does it
say?, tax status 10-99 vs W2,
C. Joint Enterprise
1. similar to a partnership, is for a more limited time period and more limited purpose. It
is generally an undertaking to execute a small number of acts or objectives. A joint
venture exists when two or more people enter into an activity if two elements are
present:
a. Common Purpose The test is not precise, but it would appear that the
majority of courts would now look for a business purpose. The sharing of
expenses between individuals is often highly persuasive.
b. Mutual Right of Control It is not crucial that the party does or does not give
directions; it is sufficient if there is an understanding between the parties that
each has a right to have her desires respected on the same basis as the others
2. Each member of a partnership or joint venture is vicariously liable for the tortious
conduct of another member committed in the scope and course of the affairs of the
partnership or joint venture
3. 491 Elements
1. an agreement, express or implied, among the members of the group;
2. a common purpose to be carried out by the group;
3. a community of pecuniary interest in that purpose, among the members; and
4. an equal right to a voice in the direction of the enterprise, which gives an equal
right of control
D. Bailments
1. the bailor is not vicariously liable for the tortious conduct of his bailee
2. Cases
E. Imputed Contributory Negligence
1. 5


The negligence of another person is imputed to a plaintiff whenever the
negligence of the other person would have been imputed had the plaintiff been a
defendant, except the negligence of another person is not imputed to a plaintiff
solely because of the plaintiffs ownership of a motor vehicle or permission for its
use by the other person
F. Statue of limitation
1. only have a certain amount of time to file
VI. Nuisance **
A. Private Nuisance
1. Substantial, unreasonable interference w/ private individuals use or enjoyment of their
property, interferes w. s use & enjoyment of their property
a. Substantial: is offensive, inconvenient, or annoying to an average person in
the community, doesn't apply to hypersensitivity
b. Unreasonable: the severity of the inflicted injury must outweigh the utility of
defendants conduct
i. amount of harm resulting from the interference
ii. relative capacity of & to bear the loss by shifting the cost through
insurance or business expense
iii. nature of each partys use of their property
iv. nature of locality
v. which party began use of property first
c. trespass to land: interference with use or enjoyment
2. a right to be free from certain interferences w/ the use and enjoyment of her land
resulting from non-trespassory invasions. owner/enpossesor can sue, actual possession
or right to immediate person
3. 821D Private Nuisance
A private nuisance is a non-trespassory invasion of anothers interest in the
private use and enjoyment of land.
4. 821F. Significant Harm
There is liability for a nuisance only to those to whom it causes significant harm,
of a kind that would be suffered by a normal person in the community or by
property in normal condition and used for a normal purpose.
5. 822. General Rule
One is subject to liability for a private nuisance if, but only if, his conduct is a
legal cause of an invasion of anothers interest in the private use and enjoyment
of land, and the invasion is either
a. intentional and unreasonable, or
b. unintentional and otherwise actionable under the rules controlling
liability for negligent or reckless conduct, or for abnormally dangerous
conditions or activities.
B. Public Nuisance
1. a substantial and unreasonable interference with community interests or the general
publics convenience or comfort, act by that obstructs or causes inconvenience or
damage to general public in exercise of rights common to all,or in enjoyment or use of
common property
2. interferes w/ health, safety or property rights of the community
3. 821B. Public Nuisance
1. A public nuisance is an unreasonable interference with a right common to the
general public.
2. Circumstances that may sustain a holding that an interference with a public
right is unreasonable include the following:


a. Whether the conduct involves a significant interference with the public
health, the public safety, the public peace, the public comfort or the public
convenience, or
b. whether the conduct is proscribed by a statute, ordinance or
administrative regulation, or
c. whether the conduct is of a continuing nature or has produced a
permanent or long-lasting effect, and, as the actor knows or has reason to
know, has a significant effect upon the public right.
C. General
1. 826. Unreasonableness of Intentional Invasion
An intentional invasion of anothers interest in the use and enjoyment of land is
unreasonable if
a. the gravity of the harm outweighs the utility of the actors conduct, or
b. the harm caused by the conduct is serious and the financial burden of
compensating for this and similar harm to others would not make the
continuation of the conduct not feasible.
2. 827. Gravity of HarmFactors Involved
In determining the gravity of the harm from an intentional invasion of anothers
interest in the use and enjoyment of land, the following factors are important:
a. the extent of the harm involved
b. the character of the harm involved;
c. the social value that the law attaches to the type of use or enjoyment
invaded;
d. the suitability of the particular use or enjoyment invaded to the
character of the locality; and
e. the burden on the person harmed of avoiding the harm.
3. 828. Utility of ConductFactors Involved
In determining the utility of conduct that causes an intentional invasion of
anothers interest in the use and enjoyment of land, the following factors are
important:
a the social value that the law attaches to the primary purpose of the
conduct;
b. the suitability of the conduct to the character of the locality; and
c. the impracticability of preventing or avoiding the invasion.
4. 829. Gravity vs. UtilityConduct Malicious or Indecent
An intentional invasion of anothers interest in the use and enjoyment of land is
unreasonable if the harm is significant and the actors conduct is
a. for the sole purpose of causing harm to the other; or
b. contrary to common standards of decency.
5. 829A. Gravity vs. UtilitySevere Harm
An intentional invasion of anothers interest in the use and enjoyment of land is
unreasonable if the harm resulting from the invasion is severe and greater than
the other should be required to bear without compensation
6. 831. Gravity vs. UtilityConduct Unsuited to Locality
An intentional invasion of anothers interest in the use and enjoyment of land is
unreasonable if the harm is significant, and
a. the particular use or enjoyment interfered with is well suited to the
character of the locality; and
b. the actors conduct is unsuited to the character of that locality
7. 840D


The fact that the plaintiff has acquired or improved his land after a nuisance
interfering with it has come into existence is not in itself sufficient to bar his
action, but it is a factor to be considered in determining whether the nuisance is
actionable.
8. Nuisances Per Se
nuisance per law, is that which is a nuisance in itself & which cannot be
conducted or maintained as to be lawfully carried on or permitted to exist. leaky
nuclear-waste stooge facility
9. Nuisance Per Accidens
exists because of the circumstances of the use or particular location. nuisance in
fact. By virtue of the circumstances surrounding the use.
10. Need substantial & unreasonable harm to
a. substantial is something a reasonable person would take offense to
b. unreasonable is harm done outweighs justifications for action
i. suitability
ii. values of properties-look at the neighborhood, million $ home ex.
iii. cost to to eliminate
iv. societal benefits
11. goes w/ trespass
12. try to get injunction
D. Remedies
1. Damages
has to have suffered a unique damage, the usual remedy is damages
2. Injunctive Relief
a. when legal remedy of damages is unavailable or inadequate
i. inadequate: continuing wrong, is of the kind that will cause irreparable
injury etc.
b. courts take into consideration the relative hardships that will result to the
parties from the grant or denial of the injunction. Hardships will not be balanced,
however, where defendants conduct was willful
3. Abatement by Self-help
a. private: can enter s property and personally abate the nuisance after notice
to and refuses to act, force only necessary to accomplish the abatement,
will be liable for additional harm
b. public: suffered unique damage has similar to private, in absence of unique
damages only abated by public authority
E. Defenses
1. Legislative Authority
consistent with zoning ordinance or license permits is relevant but not conclusive
evidence
2. Conduct of others
no one actor is liable for all the damage caused by his acts and others
3. Contributory negligence
not ordinarily a defense, when based on negligence theory can not avoid his own
wrong doing would have to prove his freedom from his negligence
4. Coming to the Nuisance
by purchasing land and moving in next to the nuisance after it is already in
existence or operation? prevailing rule is that, in the absence of a prescriptive
right, the defendant may not condemn surrounding premises to endure the
nuisance; i.e., the purchaser is entitled to reasonable use or enjoyment of


his land to the same extent as any other owner as long as he buys in good faith
and not for the sole purpose of a harassing lawsuit.
5. good for society, working on a cure,
F. Cases
1. Idaho law does not follow subsection b of the Restatement allowing for the payment of
damages when the gravity of the harm is outweighed by the utility of the conduct, yet the
harm is serious and the payment is feasible without forcing discontinuation of the
business. Carpenter v. Double R Cattle
2. Indiana Code section 32-30-6-6 (2006) defines an actionable nuisance as follows:
Whatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an
obstruction to the free use of property; so as essentially to interfere with the comfortable
enjoyment of life or property, is a nuisance, and the subject of an action. Mills v.
Kimbley
3. A private nuisance may be asserted by those with property rights and privilege in
respect to the use and enjoyment of the land affected, including possessor of the land
Not one who is there only part time. No injunction Hot Rod Hill Motor Park v. Triolo
4. A subsequent bona fide purchaser of land cannot claim private nuisance against a
previous owner for damage done to the land. A Plaintiff cannot claim a tort action for
public nuisance against a Defendant unless the Plaintiff can claim particular damages
suffered due to an interference with a public right. Philadelphia Electric Company v.
Hercules Inc.
5. When a nuisance is of such a permanent and unabatable nature that a single
recovery can be had, there can be only one recovery. Boomer v. Atlantic Co.
6. When a developer has brought into a previously agricultural or industrial area the
population, which makes the granting of an injunction necessary, the developer must
indemnify the enjoined business if the impending injunction was foreseeable by the
developer. Spur Industries, Inc. v. Del E. Webb Development Co
7. Because the business was operating without a license or permit, and in violation of
federal law, it was a nuisance per se that could be abated by injunction. city of claremont
v kruse
VII. Products Liability
A. Negligence
1. must prove: legal duty, breach of the duty, actual & proximate cause, damages
2. Duty of care to
a. must be Commercial Suppliers: manufacturer of a chattel or a component part
thereof, assembler, wholesaler, retailer, or even a used car dealer who sells
reconditioned or rebuilt cars. Those who repair a product owe a general duty of
care, but are not usually suppliers for purposes of products liability cases.
b. A retailer who labels a product as the retailers own or assembles a product
from components manufactured by others is liable for the negligence of the
actual manufacturer, even though the retailer is not personally negligent.
c. Privity not required: the relationship between parties each having al legally
recognized interest in the same subject
3. Breach
a. must show negligent conduct leading to the suppling of a defective
product
b. liability of manufacturer: may invoke res ipsa loquitur if error is something that
usually wont occur w/o negligence
c. liability of dealer: retailers/wholesalers, majority view is that if buy from a
reputable supplier then only need to do a cursory inspection


d. Proof: must show that the designers knew or should have the dangers of
marketing the items as designed. not shown if after hits the market and finds a
defect
4. Causation
a. failure to discover the defect is NOT superseding cause, defendant whose
original negligence created the defect will be held liable along with the
intermediary. when the intermediarys conduct becomes something more than
ordinary foreseeable negligence, it becomes a superseding cause
5. Damages
a. recover personal injury & property damages
6. Cases
a. The general rule is that a contractor, manufacturer, vendor, or furnisher of an
article is not liable to third parties who have no contractual relations with him for
negligence in the construction, manufacture, or sale of such article MacPherson
v. buick Motor
B. Strict Liability
1. 402A
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 bought the product from or entered into
any contractual relation with the seller.
2. Products Liability 1 Liability of Commercial Seller or Distributor for Harm Caused by
Defective Products
One engaged in the business of selling or otherwise distributing products who
sells or distributes a defective product is subject to liability for harm to persons or
property caused by the defect.
3. Must prove: commercial supplier, produced/sold a defective product, product was
actual & proximate cause, suffered damages
a. commercial supplier: is a manufacture/retailer/wholesaler/assembler, only
supply the items not the seller of the items
b. items can not be changed at all
c. privity not required: buyers, buyers family, guests, friends, employees,
foreseeable bystanders
d. prove the product was indeed defective
e. actual cause: harm suffered to a defect in the product that existed when the
product left the defendants control, if not may rely on an inference this type of
product failure would result
f. proximate cause: same as negligence
g. damages: personal injury, property loss, most will NOT award for economic
loss
h. defenses: contributory negligence, competitive negligence, disclaimers of
liability ineffective (irrelevant of personal injury or property damages has
occurred)
4. Cases


1. Individuals injured by products with design or manufacturing defects may bring
suit under strict liability regardless of a failure to give timely notice to the
manufacturer for a breach of warranty. Greenman v. Yuba Power Products Inc
C. Product Defects
1. Manufacturing or Construction Defects
a. Products Liability 2(a)
A product contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised in the
preparation and marketing of the product.
2. are variations from the intended design of a product that may understandably
occur in a small percentage of products as a result of shortcomings in the
manufacturing process, e.g., when a product is somehow physically flawed,
damaged, or improperly assembled.
3. plaintiffs alleging a manufacturing defect must establish that the product
deviated from either the manufacturers intended design or from other products of
the same design.
4. has the burden of proving that the defect existed at the time that the product
left the hands of the manufacturer
5. prevail if the product was dangerous beyond the expectation of the ordinary consumer
because of a departure from its intended design.
6. product not in condition manufacturer intended
D. Design Defect
1. must show a reasonable alternative design, i.e., that a less dangerous modification or
alternative was economically feasible.
2. Feasible alternatives
a. usefulness and desirability
b. availability of safer alternative products
c. the dangers of the product that have been identified by the time of trial
d. likelihood & probable seriousness of injury
e. obviousness of the danger
f. normal public expectation of danger
g. avoidably of injury by care in use of product: instructions/warnings
h. feasibility of eliminating the danger w/o seriously impairing the products
function/making it unduly expensive
3. 4B government safety
in connection with liability for defective design a products compliance with an
applicable product safety statute or administrative regulation is properly
considered win determining whether the product is defect with respect to the
risks sought to be reduced by the statute or regulation, but such compliance does
not preclude as a matter of law a finding or product defect.
4. 2(b)
A product is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe.
5. Harder to prove, product was in condition but was designed in in an unsafe way to
present undue risk of harm
a. risk utility test
1. the utility of the product to the user and to the public as a whole
weighed against the gravity and likelihood of injury from its use; 2. the


availability of a substitute product which would meet the same need and
not be unsafe or unreasonably expensive; 3. the manufacturers ability to
eliminate the unsafe character of the product without seriously impairing
its usefulness or significantly increasing its costs; 4. the users anticipated
awareness of the dangers inherent in the product and their avoidability
because of general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or instructions; and 5. the
expectations of the ordinary consumer.
b. consumer expectation
how the reasonable person would use it
5. Cases
a. plaintiff must prove that 1. the product was defectively designed so as to
render it unreasonably dangerous; 2. a safer alternative design existed; and 3.
the defect was a producing cause of the injury for which the plaintiff seeks
recovery Timpte Indus, Inc v. Gish
b. compliance with applicable regulations is admissible in connection w/ liability
for defect design Malcolm v. Evenflo Co
E. Warning Defect
1. 2(c)
A product is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings and the
omission of the instructions or warnings renders the product not reasonably safe.
2. 3 Circumstantial Evidence Supporting Inference of Product Defect
It may be inferred that the harm sustained by the plaintiff was caused by a
product defect existing at the time of sale or distribution, without proof of a
specific defect, when the incident that harmed the plaintiff:
a. was of a kind that ordinarily occurs as a result of product defect; and
b. was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution.
3. Defenses: scientific manner: no one knew if used in this manner it would cause
problems, comparative fault:fact intensive
4. Cases
a. Anderson v. Owens-Corning Fiberglas Corp.
b. Freidman v. General Motors Corp.
VIII. Defamation
A. Defamation
1. 558 Elements
a. defamatory language on the part of the
b. language must be of or concerning the , id the
c. publication of the language by to 3rd person
d. damage to reputation to
e. falsity (if public figure)
f. fault of s part
2. Defamatory Language
a. inducement & Innuendo:adding facts to the statement
b. methods: pictures, satire, drama
c. statements of opinion: specific facts & express allegation of those facts
3. facts v. opinion
more broad the terms or statement less likely
4. Who can defamed?


a. individual: Any living person may be defamed
b. Corporation, Unincorporated Association, and Partnership: by remarks as
to its financial condition, honesty, integrity, etc.
5. Reasonable person would have to understand
6. Publication requirement is satisfied when there is a communication to a third
person who understood it.
7. Single Publication RuleStatute of Limitations
all copies are treated as one, deems when it is put for sale, damages are still
total effect on all readers
8. Who may be liable?
a. primary publisher: any one who takes part in the publication
b. republisher: who repeats the defamatory remarks
c. secondary publishers: vendors, had to know or should have know
9. Damages
a. General or Presumed Damages: General damages are presumed by law and
need not be proved by the plaintiff.
b. Special damages: must prove that he suffered pecuniary losses loss of job,
prospective gifts/inheritance, business relationships
10. 559. Defamatory Communications Defined
A communication is defamatory if it tends so to harm the reputation of another as
to lower him in the estimation of the community or to deter third persons
from associating or dealing with him
11. Publication to 3rd party, understand as defamatory of , allegation of falsity-must
contain factual allegation, damages-actual malice for punitives, constitutional
considerations-NY times
12. Limited purpose public figures
public figures for a limited range of issues surrounding a particular public
controversy
13. Public Figures
individuals who have achieved such pervasive fame or notoriety that they
become public figures for all purpose and in all context
B. Libel
1. defamatory statement recorded in writing or some other permanent form. can be
t.v or radio
2. Damages
a. general damages: presumed by law
b. minority position
3. libel per se
broadcast or written publication of a false statement about another which
accuses him/her of a crime, immoral acts, inability to perform his/her profession,
having a loathsome disease (like syphilis), or dishonesty in business. Such
claims are considered so obviously harmful that malice need not be proved to
obtain a judgment for "general damages," and not just specific losses.
4. libel per quod
phrase that prefaces the recital of the consequences of certain acts as a ground
of special harm to the plaintiff.
C. Slander
1. spoken defamation. It is to be distinguished from libel in that the defamation is in
less permanent and less physical form.
2. Damages
a. Special Damages Usually Required


b. Slander Per SeInjury Presumed
i. Business or Profession: adversely reflecting on plaintiffs abilities in his
business, trade, or profession is actionable without pleading or proof of
special damage. statements like he's dishonest or lack skills
ii. Loathsome Disease: limited to venereal disease and leprosy.
iii. Crime Involving Moral Turpitude: is or was guilty of a crime involving
moral turpitude is actionable without pleading or proof of special damages
iv. Unchastity of a Woman
3. 568. Libel and Slander Distinguished
1. Libel consists of the publication of defamatory matter by written or printed
words, by its embodiment in physical form or by any other form of communication
that has the potentially harmful qualities characteristic of written or printed words.
2. Slander consists of the publication of defamatory matter by spoken words,
transitory gestures or by any form of communication other than those stated in
Subsection (1).
D. Public
1. Public Officials
may not recover for defamatory words relating to his official conduct in the
absence of clear and convincing proof that the statement was made with actual
malice.
2. Public FiguresActual Malice Required
The rule of New York Times v. Sullivan has been extended to cover litigation
where the plaintiff is a public figure.
3. (i) where he has achieved such pervasive fame or notoriety that he becomes a
public figure for all purposes and contexts (e.g., celebrity sports figure); or (ii) where he
voluntarily assumes a central role in a particular public controversy
4. Actual Malice
a. Test: knowledge the statement was false OR reckless disregard as to its truth/
falsity
b. reckless: not measured by a reasonable person standard or by whether a
reasonable person would have investigated before publishing. must be a
showing that the in fact (subjectively) entertained serious doubts as to the
truthfulness of his publication.
5. Private person
a. have to prove malice
b. do not have the same opportunities for rebuttal as do public persons: more
vulnerable
c. involves a matter of public concern, Gertz imposes two restrictions on private
plaintiffs: (i) it prohibits liability without fault, and (ii) it restricts the recovery of
presumed or punitive damages.
d. Actual Injury: not limited to out-of-pocket loss
E. Defenses
1. Consent
2. Truth
3. Absolute Privilege
a. not effected by showing actual malice
b. Judicial proceedings: anything said in a case
c. Legislative Proceedings: federal/state legislator no requirement of reasonable
relationship
d. Executive Proceeding: govt executive official, has to have some reasonable
relationship


e. Compelled broadcast/Publication:
f. Communication between spouses
4. Qualified Privilege
a. reports of public proceedings
b. public interest
c. interest of publisher
d. interest of recipient
e. common interest of publisher & recipient
F. Cases
1. If the meaning of an article is capable of two interpretations, one being defamatory
and the other not, it is for the jury to determine the meaning of the article based on all of
the evidence. Belli v. Orlando Daily Newspapers, Inc
2. An 'interactive computer service qualifies for immunity so long as it does not also
function as an information content provider for the portion of the statement or
publication claimed to be false, misleading or defamatory. Carafano v. Metrosplash.com,
Inc.
3. The constitutional guarantees require a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice that is, with knowledge that it
was false or with reckless disregard of whether it was false or not. New york times v
Sullivan
IX. Privacy
1. Wrongs
a. appropriation by defendant of plaintiffs picture or name for defendants
commercial advantage;
b. Intrusion by the defendant upon plaintiffs affairs or seclusion;
c. Publication by the defendant of facts placing the plaintiff in a false light
d. Public disclosures of private facts about the plaintiff by the defendant
A. Intrusion on Plaintiffs Affairs or Seclusion Elements
a. Act of prying or intruding on the affairs or seclusion of the plaintiff by the
defendant;
b. The intrusion is something that would be highly offensive to a reasonable
person; and
c. The thing to which there is an intrusion or prying is private.
1. 652b (1977)
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion off another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.
2. a. unreasonable intrusion upon the seclusion of another ...; or b. appropriation of the
others name or likeness ...; or c. unreasonable publicity given to the others private
life ...; or d. publicity that unreasonably places the other in a false light before the
public....
B. Publication of Facts Placing Plaintiff in False Light Elements
a. Publication of facts about plaintiff by defendant placing plaintiff in a false light
in the public eye;
b. The false light is something that would be highly offensive to a reasonable
person under the circumstances; and
c. Actual malice on the part of defendant where the published matter is in the
public interest.


1. publicity concerning the false light facts; this requires more than publication in the
defamation sense.
2. A fact will be deemed to present plaintiff in a false light if it attributes to him: Views
that he does not hold, or Actions that he did not take.
3. Highly offensive to a reasonable person
4. Actual Malice Necessary Where in Public Interest
5. 652E
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of
his privacy, if
a. the false light in which the other was placed would be highly offensive
to a reasonable person, and
b. the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would
be placed.
C. Publication of private facts elements
a. Publication or public disclosure by defendant of private information about the
plaintiff; and
b. The matter made public is such that its disclosure would be highly offensive
to a reasonable person.
1. have to private facts, public records do not apply
2. 652d (1977)
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of privacy, if the matter publicized is of
a kind that
a. would be highly offensive to a reasonable person, and
b. is not of legitimate concern to the public.
3. microphone in someones bedroom
D. Appropriation (famous)
1. elements: Unauthorized use by defendant of plaintiffs picture or name for
defendants commercial advantage.
2. 652c
One who appropriates to his own use or benefit the name or likeness of another
is subject to liability to the other for invasion of his privacy.
3. using it for commercial advantage/benefit
4. using a famous persons face to advertise your business when they did not approve