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NEGLIGENCE
Elements:
1. Duty: a legally recognized relationship b/w parties that requires D to act a certain way
2. Breach: A failure of D to meet the required standard of care
3. Causation: Nexus b/w Ds conduct and Ps harm
1) Factual (actual) cause - "but for"
2) Proximate (legal) cause
4. Damages: A cognizable loss to P, compensable by a money reward
3. CAUSATION:
1. Proximate Cause:
(1) Reasonably foreseeable harm of the consequent damage
(2) Liable for anticipated/expected consequences of Ds neg. acts
Factors:
1. Foreseeable Consequence
i) Type of Harm (foreseeable) Not Extent of Harm
ii) Eggshell Skull, the harm (foreseeable) not Particular Type of Harm
iii) Unusual Manner, manner need not be foreseen
2. Not too attenuated (in time and space)
3. Natural and Continuous Sequence
i) NO superseding Intervening Forces:
Unforeseeable intervening forces - Cut Off Liability
Later int'l/crim conduct; extraordinary or far removed from Ds neg. severs prox.
Cause
Foreseeable Intervening Forces - DO NOT cut off liability
Later neg. by others
Later acts of nature; unless extraordinary or unanticipated
4. Direct Connection (w/public policy reasoning)
4. DAMAGES
P must prove actual damages ($loss) as part of their prima facie case for Negligence
Tort Damages:
COMPENSATORY: "to make P whole again"
Purpose: restitution and indemnity (nothing more)
DEFENSES TO NEGLIGENCE
Based on Ps Conduct
1. CONTRIBUTORY NEGLIGENCE: COMPLETE BAR
(1) Ps own conduct falls below the strd. of care and (2) is a legally contribution cause
UNLESS; D had the Last Clear Chance (doctrine) to avoid the harm
□ If applicable: D remains liable despite Ps prior neg.
2. COMPARATIVE NEGLIGENCE: LIMITS RECOVERY
Pure: can recover regardless of own neg. but Ps recovery is reduced by own fault %
Modified: Ps recovery is reduced by % of own neg. OR
BARRED - IF P's negligence EXCEEDES the fault bar [level of culpability]
is "greater than" Ds neg = BAR {Majority}
is "Equal or Greater than" Ds neg = BAR
is "More than Slight" = BAR {1 State}
3. ASSUMPTION OF THE RISK [A/R]: Generally D is NOT LIABLE
Where P knows of the risk posed by Ds conduct and voluntarily encounters it
1. EXPRESS A/R : by K or other explicit agreement P accepts risk: COMPLETE BAR
Exceptions; (assumption is invalid)
a. Intentional, Reckless or Gross Negligence (by D?)
b. Grossly unequal bargaining power
c. Public Interest Transactions
i) TUNKL TEST: (determine what is pub trans)
Suitable for pub regulation
Essential service
Services held open to the pub
Superior bargaining power
Adhesion K
Seller has control over and subjects P to risk
d. Outside the scope of Assumption
e. K invalid, Fraud, Mistake, Undo Influence
2. IMPLIED A/R: Ps conduct shows P assumed risk : COMPLETE BAR?
□ D must prove P; (1) Knew of the risk/magnitude, and (2) voluntarily encountered it
□ INVOLUNTARY Conduct: Juris split where -
P is coerced or under duress
P has no reasonable alternative
3. UNREASOANBLE A/R: Juris Split -
[1] A/R Remains Complete Defense BAR Traditional
[2] A/R Partial merger w/ COMP Fault (Patial Defence) Min. Trend
1. Unreasonable A/R → ↓Recovery
2. Reasonable A/R → BAR
[3] A/R Fully merged w/ COMP Fault NO BAR Maj. Trend
1. Unreasonable A/R → ↓Recovery
2. Reasonable A/R → No or Some ↓
VICARIOUS LIABILITY [V/L]
Liability based on a relationship not fault (imputed)
1. Employer [ER] / Employee [EE] - Generally Liable (if w/in scope of employment)
ANALYTIAL FRAMEWORK:
Step 1: are S/L Animals or S/L Activities involved
Step 2: is type of harm w/in the inherent risk posed by Animal or Activity
Step 3: is there causation, factual but for and prox cause foreseeable harm
Step 4: does D have any Defenses
1. TRESPASSING ANIMALS - keepers of roaming animals are S/L for any harm caused
Exceptions: cats and dogs, livestock straying from highways
Livestock Statutes:
Fencing out - P fences out
Fencing in - D fences in
Strict liability - same as common law
No liability w/o fault
2. DANGEROUS ANIMALS - 2 Tests; wild v. domestic
1. Inherent Nature of Species - dangerous and untamable
□ Look at entire class of animal, not just the particular case
2. Customarily of Service to Humankind - determined by community standards
○ Wild - S/L - provided the type of harm results from the animals dangerous nature unless exception exists (zookeeper)
○ Domestic - ordinarily not S/L for harm -
Exception; if owner is on notice (or should have known) of animals vicious propensities (scienter)
PRODUCTS LIABLITY
Governs liability for the commercial transfer of products that cause harm b/c they are defective and/or falsely
represented
1. NEGLIGENCE
Duty: owed by all Products Sellers (Ds) to Purchasers and other foreseeable Ps
Breach: Unreasonable product design, mfg., or warnings
Causation: But for factual and proximate foreseeable harm legal cause
Damages: $ loss from physical injury or property harm
Defenses: Comparative fault, Implied A/R, Unforeseeable Product Misuse (will bar p's claim if injury results
from unforeseeable misuse of defective product - but not if misuse was reasonably foreseeable)
2. INTENTIONAL
Requires:
Intent: D Intended consequences or KTSC harm would occur
Damages: Compensatory and Punitive (like intl torts)
Defenses: Consent only (no neg defenses for intl torts)
3. MISREPRESENTATIONS: RS2nd 402b - Seller of any product in a defective condition unreasonably dangerous to the
consumer/user of property is subject to liability of physical harm
Elements:
1. Merchants
2. Who make a misrepresentation of material fact to public in advertising, labels or otherwise
3. Are liable to P (consumer or incidental user) if justifiably relies on the misrep
4. And damages for physical injury proximately result
Defenses: Ps Neg and A/R
4. STRICT PRODUCTS LIABLITY (RS 402A) manufacture, design, warning defects
IF;
1) Seller is engaged in the business of selling such a product and
2) It is expected to and does reach consumer without substantial change in condition
Elements:
Commercial seller and consumer user; enjoy, prepare for use, doing work w/ product)
Defective product that is unreasonably dangerous
The defect caused physical harm or property damage
The product is expected to and does reach consumer without substantial change
1. MANUFACTURING DEFECTS: does not conform to some significant aspect of the intended design nor does it
conform to the great maj of products with that design
Test:
1. Product unit is dif from others
2. Is more dangerous
3. Defect existed @ the time the product left Ds control
DEFAMATION
Harm to reputation from false statements
Com. Law: Def stmts are those that hold P up to "SCORN, RIDICULE, or CONTEMPT
RS : Def stmts tend to harm Ps reputation by
a. LOWERING him in estimation of community OR
b. DETERS 3rd parties from associating with him
Elements:
1st. DEFAMATORY STATEMENT : must be UNDERSTOOD as defamatory by -
a. Gen Rule: SOME # of pple
b. RS Position: A SUBSTANTIAL minority of pple who are not ANTI-Social
c. Min Rule: some RIGHT Thinking people
Plead in addition to Def Stmt to
Inducement: background info to explain principle that makes the stmt defamatory
Innuendo: Explains defamatory Meaning
2nd. ABOUT THE P : must reasonably be understood by recipients as being ABOUT or CONCERNING the P
Colloquium: the formal allegation that the Def words are "of and concerning the P"
IF P is a member of a:
Large Group: cannot sue; UNLESS particular circumstances point to the P (can an individual in a large group prevail)
Small Group: May all sue; IF stmt refers to EVERY MEMBER
3rd. FALSE : P must prove falsity at least in cases w/ public Ps or Media Ds and Matter of Public Concern
Trad Com Law Rule: PRESUMED Def Stmt to be FALSE; but D could asset "TRUTH" as affirmative defense
To support Defense based on truth --
D must be able to prove the stmts are SUBSTANTIALLY TRUE
4th. FACTUAL : stmt must be a fact to be actionable (opinions actionable in limited circumstances)
Fact v. Opinion
Matters of Pub Concern: Stmt must be PROVABLY FALSE
Protected Exception: Rhetorical Hyperbole which cannot be reasonably interpreted as actual facts
Gen OPINION Rule: Actionable where it either -
a. Contains or implies provably true or false facts OR
b. Is contrary to speakers actual viewpoint
5th. PUBLISHED : (1) COMMUNICATED int'ly or neg'ly by the D (2) to @ least ONE person other than the P who UNDERSTOOD it
1. Self Publication: NO publication where P rather than D communicates the Def Stmt
EXCEPT; Reasonably expected consultants or Forced Self Publication
2. Re-Publishers: REPETION of a published Def Stmt GENERALLY constitutes an actionable publication
Rules -
a. Primary Publishers: are liable for any repub. EVEN IF they innocently took Def Stmt from someone else
b. EXCEPTIONS;
1. Single Publication Rule - entire edition of a book, periodical, or newspaper constitutes a single pub = a
single cause of action
2. Secondary Publishers - Are NOT LIABLE
a. UNLESS; They (1) had KNOWLEDGE of the Def matter AND (2) Some reason to be put ON GUARD
3. Internet Publishers: No interactive comp service is treated as a publisher of info provided by another content
provider
SLANDER - Spoken words, transitory gestures and any form non Libel
Rule: requires proof of Special Damages unless claim is Per-se
Eg. Loss of marriage, customers, gratuitous entertainment
Per-se: 4Cs
1. Serious Crimes
2. Loathsome Communicable Diseases
3. Professional inCompetence
4. Serious sexual misConduct (want of Chastity)
LIBEL - Written or Printed words, or embodiment in physical form of equivalent harmful qualities
Rule: allows for general (presumed) damages
Per-se: Def meaning understood from the written words alone
Per Quod: extrinsic evidence needed to show defamatory meaning
*juris split on proof of damages
Qualified/Conditional Privilege - can be lost (if you knew it was false when it was said, or made it with an improper
purpose/ill will bad faith)
○ P has proved all the elements, D is saying that they cannot be held liable b/c of a priv.
FAIR COMMENT PRIVILEGE : Protects opinion on matters of public interest
Irrelevant: look to provably false standard (if implies facts that are provably true that are objective then
actionable)
FAIR AND ACCURATE REPORTING PRIVILEGE : Reports on public proceedings are conditionally privileged as
long as the reports are
Verbatim transcriptions or
Fair and accurate summaries (not biased or taken out of context, substantially correct)
◊ Lost if not transcribed correctly
◊ If 1st amendment applies, D must be at fault
INTEREST PRIVILEGES (social utility, but can be los if abused)
Public interest: protects statements that are made in the interest of the public, like a PSA, and
trying to inform the public
◊ Loose if made with malice, or made knowing they are false or to an inappropriate person
who is not in a position to benefit
Ds self-interest
◊ Protected unless know it is false acting with ill will/malice
3rd party interest
Common interest