Tuesday, January 22, 2008

Bigger Stimulus Package

So I took my laptop to school today in hopes that it would improve my productivity.

What do you think happened?

I see this headline on MSN.com: Bush won't rule out bigger stimulus package.

This immediately makes me think of something NSFW. I want a bigger stimulus package! That would be such a good come on. Hey sonny, wanna feel my big stimulus package? Mmmmmm, happy thoughts.

And another one, Man cracks 200 coconuts with elbow. Y'all this is what passes for news these days.

O and here's another one, "Some songs can be dangerous to one's health." Oooo, Does that mean Mariah Carey can finally be banned? I can think of several songs that are dangerous to one's intelligence, and we have Sailor Moon to prove it. - speaking of whom- he has abandoned "Fergilicious" for Rhianna. Also speaking of whom, o- this is a long story.

Alex was making some attempts at dating, sort of like how my Mom makes attempts at cooking? Like when we were young- she would attempt to make bread, but she would not use a recipe? Or yeast or anything that you would think of as "bread." She would take whole wheat flour, and yogurt and baking soda or powder, I forget which, and then the remnants of whatever sticky thing was on the table at the time, like jam or honey, and mix it up and bake it in a mixing bowl and then be thoroughly confounded when it was inedible. Then she would kind of mash it up with some cooking oil and sugar and make "cookies" which were inedible as well, so then this thing became Bird Food.

Naomi introduced him to a girl she works with, and he went out with her a couple of times but then he started taking dating advice from Sailor Moon- who claims to have a whole bevy of invisible-to-the-rest-of-us girlfriends. Sailor Moon has much advice about dating, which he dispenses liberally without regard to its grounding in reality.
Ok, fine, he MIGHT have a whole bevy of invisible girlfriends, why not. h

BUG ALERT BUG ALERT BUG ALERT AS I AM TYPING THIS AT GA STATE A ROACH JUST CRAWLED OUT OF MY COAT (I THINK) EWWWW. I AM INFESTED. AND THIS IS AFTER WE BOMBED THE HOUSE TWICE. EWWWWW.

Ok, back to post. Bug has been squished. He does drive a highly resistable Hyundai Accent and lives with his old man, and can sing (although he denies this) the entire Spice Girls catalogue, Alejandro referred to him, entirely accurately as the "big fat pig boy who comes over and eats all your food" and he makes dentures for a living! Don't you want to marry him, ladies?

I think if he continues on this campaign of untruths I am going to set him up with Cathy. That should serve both of them right. (They are mad at each other because at my birthday, Cathy got drunk and was very loudly insistent that I take my fur coat off, and then she asked him to go hang it up and he was like No! and she got mad)

He has been giving Alex all kinds of advice like you have to be mean to a girl and not call her and so forth. Alex has been LISTENING to this advice, so he is trying to be bad-ass, which is- - - yeah. He's an accountant living in a ranch house in Clarkston working on his Master's degree. Frankly, Kathie Lee Gifford would probably present a more convincing bad-ass. I told him he should just Be Himself, but then again this is someone who still wears plaid flannel shirts even though he is not a Walton and then Sara's dad wanted to take him to the PX and buy him some clothes because he thought Alex couldn't afford any - - - y'all this is NOT my fault. And Alex still thinks "Patch Adams" and "What Dreams May Come" were good movies, and -wait I will tell you about the next thing in a little bit. I should probably tell him to Be Himself but dress like someone else, someone who does not own a pair of shorts that are the colour of goose poo.

So he was all like, I'm not calling her, she has to call me, because I called her once, so now it's her turn, and just generally being difficult. This did not prove to be an effective dating strategy.

Alex reacted to this by- instead of just chalking it up to that's the way it goes and throwing away his awful shorts and not listening to Sailor Moon's "advice"- decided to buy a 1979 Monte Carlo from one of his church members, who owned the car since it was new. So now he will not get any lady friends, ever. My parents must be so proud.

Now y'all know- when old people or we (us)? give anything away, it is no good anymore, because old people and we (us?) get the absolute last drop of use out of something before we give it away or sell it. Also this car is carbureted, and if you can explain to me how a carburetor works, you can get a prize, perhaps my Big Stimulus Package. I have distant memories of our pre-fuel injection, pre-electronic ignition era cars, and they sucked mightily. First of all, a '79 Monte Carlo is all worn out if this lady is selling it, so it is no good, and it wasn't a good car in the first place when it was new. People who owned them now live in places like New York or Chicago, or wherever Osama Bin Laden is. Do you know why he hates America so much? He had a '79 Monte Carlo.

need I mention that this car broke down on its maiden voyage; he brought it to my Dad's house and on the way back to the seller's residence, it died and refused to restart. It had to be pushed for - a long way- and then decided once it had been pushed home to restart. This amused Alex considerably. "The look on your face-of horror-" Alex chortled. I steadfastly refuse to ride in "I go where I'm towed II." I think I ought to buy a violet beehive wig and wear it around him, to express my displeasure.

Alex thinks this is because I am jealous, "because my car's older than yours". Dude, that's like saying I'm jealous because you're dating Bella Abzug and I'm dating - that hot tennis chick. I think Alex has done a fair job of insuring that he is not likely to go on another date in the near term. Ladies, watch out! Alex is going to try to make you go out with him in this awful car and you will have to push it and he is going to think it is funny. Don't say I didn't warn you.

O I remember what the point of this was, so he has this horrible, horrible car, and then this weekend he and Sailor Moon decided to replace the valve cover gaskets. Now I did that once- on his Raven- with Mr. Paulino, and that car was much easier, but it did not solve the leakage. So I warned Alex this was not a good idea.

Of course Alex does not listen, and of course he disconnects accidentally a variety of vacuum and other hoses, and the car is now A) smoking for a brief interval and B) it cranks and then dies immediately. Sailor Moon, who has some kind of degree/diploma in auto mechanics that he got at missionary school (?) did not realise what the evaporative canister was.

And y'all wonder why I don't post more often!

Friday, January 18, 2008

Torts II

Pure emotional loss, Thing case. Closely related to victim, present on scene, and is aware that is causing injury to victim, and suffered severe emotional distress not abnormal to circumstances and beyond that suffered by uninterested witness.

Limited duty of care due to unborn child, if fetus born with injuries suffered in utero due to def's negligence, can sue pl.

Can sue if child born and then dies

What if child is stillborn? cts. mixed.

Prochanik- wrongful birth claim by parents, wrongful life claim by child. Few jDs allow claim for wrongful life. If allowed, very limited to extraordinary medical expenses.

Are disabled people in favour of or disfavour the wrongful life claims?
Disfavour: we don't want to encourage society to discriminate against the disabled by suggesting that their lives are worthless.
Favour: $.

Curlender: ct suggested that parents may be liable for a conscious decision to conceive and allow to be born a seriously impaired infant. legislature disallowed.

Owners and Occupiers of land.

Outside the Premises
Taylor v. Olsen
OR sup ct '78
It was a dark and stormy night, Pl hit a tree which had fallen across road from Olsen's property, TC directed verdict for Olsen. LL has duty of "reasonable care to avoid an unreasonable risk of harm"- determined as a question of fact by jury.
is there a duty for ll to inspect trees? Here ll was logger- tree was decayed, but not visibly. Not error to direct verdict for def.

No duty by ll to protect people from things arising in the course of nature to those outside the premises.

Is use of land natural- no duty, or is it artificial- altered- then duty.
But there's an exception for trees, if he knew tree was defective, there is a duty of care.

Old rule: urban land, duty, rural land, no duty.

Salevan v. Washington Park, DE superior ct '50

Pl sued because hit by baseball while walking by stadium.
Many foul balls hit out of park, pl contends that def has duty to exercise reasonable care in the use of its land so as to prevent injury to travelers nearby, defendant had notice of baseballs, def did not take enough precautions.
Ct thinks - precautions insufficient and defendant had notice that the precautions were insufficient, verdict should be for pl.

Distinction is btw static conditions and active conduct; nonfeasance v. misfeasance- static conduct is lack of action v. actually doing something in a negligent manner.
Trespassers on the Premises

Sheehan V. St Paul & Duluth Ry. Co. U.S. 7Circuit, 1896.
Pl walking on rr track, his foot slipped and became caught btw rail and cattle guard, train approached and ran over his foot. TC rules for defendant, injury did not occur as result of wrongful action on the part of the defendant.
Pl was an intruder, excludes elements of implied license or invitation to use.
What duty is owed to trespasser and when does the duty arise; Trespasser cannot be treated as outlaw and if wantonly injured, company liable in damages. Company has some duty of care when the danger becomes apparent; Is it bound to assume that rational beings will enter as trespassers in a place of danger and exercise constant vigilance?
Rule: RR own right to a free track, and it is not bound to any act or service in anticipation of trespassers, and that the trespasser who ventures upon a track assumes all risks of the conditions which may be found there, including the operation of engines and cars. RR co is to exercise strict and constant care against injury through its means - only works for existing duty or obligation, such as at street crossing- co is on notice. Lawful aspect doesn't matter. RR co has no constructive/actual notice until it is too late, so positive duty of care rests with the trespasser. Company does have obligation to avoid injury once notified by seeing person on track. Judgment affirmed for rrco.

Majority of jDs- rule 4D- if and when trespasser is discovered, ll must use ordinary care to avoid injuring him by active operations.
No duty to prevent injury to trespasser.

I love all this talk about bigger stimulus package. I want a big stimulus package. Which candidate has the biggest stimulus package?
Licensees: has duty to warn licensee of dangers of which ll has knowledge.

Invitee: comes in furtherance of owner's business, owner has duty to fix problems that may exist.

What about if invitee is attacked by third party criminal element?
Invitor failed to take reasonable measures to reduce the risk of criminal activity. Or invitor's actions in the face of the crime negligently endangered the invitee.
Barmore v. Elmore, IL '80 (House of Yes)
Pl appeals from Circuit CT order giving verdict for Defendants.

Pl came to def's home to discuss lodge business. Codefendant, son, entered room with knife, advanced toward plaintiff, stabbed pl several times in the chest.
Pl claimed defendants, as landowners were negligent in failing to protect him from dangerous condition, which was son w/history of mental illness. Is he invitee or licensee? Invitee is sufficient he goes on land in furtherance of the owner's business. He doesn't have to gain an advantage by his entry on the land
Special guest enters by permission but for licensee's own purposes. Social guest is a person who goes on another's property for companionship, diversion, or entertainment
Duty owed to licensee < than invitee

Duty owed to licensee, and trespasser, is less than the ordinary standard of care.

THAT IS CORRECT, STOP TRYING TO CHANGE IT.

Social guest must take premises as he finds them. Owner has duty to warn licensee of hidden dangers unknown to guest. Pl sez, I was invitee.-> duty owed to invitee is reasonable care, including perhaps the responsibility to protect pl from third party attacks.
Ct sez; Benefit was to fraternal organisation, not to def himself. Pl was licensee-social guest and defs had duty to warn him of hidden dangers known to defs.
Defs breached duty, if such a duty exists- pl sez, they knew son was dangerous, ct disagrees. Previous violent incidents had occurred many years before, and Pl had contact with son before w/o incident so they didn't know he was dangerous. No duty.

Could also say that criminal act of psychotic son was a superseding act.

In this case, what steps would be necessary to make the premises safe? Can we never have guests? Do we have to chain Junior up in the basement?
(Ask her what the homeowners ins co is likely to do in this situation, are they going to drop coverage?)
Some courts hold: no duty to licensee except to refrain from inflicting wilful/wanton injury, not just to discovered licensees but also to those who might be anticipated.
Some jDs break into ordinary and bare licensees, bare licensees being salespersons, canvassers and social visitors w/o express invites.

Invitee: duty to keep premises reasonably safe,
Licensee: duty to warn only.

Licensee: enters property with permission for one's own purposes, includes social guests
Invitee: enters property for furtherance of owner's interests.

Campbell v. Weathers KS sup CT '41
Weathers operated a lunch counter & cigar stand, pl entered def's place of business, loitered, and used toilet, stepped into open trap door and was injured, TC for Def. Pl appeals.
Was Pl a trespasser, licensee, or an invitee?
Pl had been a customer for many years, public had general invitation to become lessee's customers. We don't want to say he didn't have an implied invitation to use the toilet b/c he didn't make a purchase. Toilet facilities provided by law. Invitee even if no purchase.
Not a trespasser/licensee who enters the premises on a personal errand for the advancement of his own interest or benefit, even then can have the same protection.

Invitee is one who is either expressly or impliedly invited onto the premises of another in connection with the business carried on by that other. If individual was never going to make a purchase, then not an invitee.
Reverse demurrer of lessee.

Yale case: he was invitee b/c he was going to give $ to school

Invitee: entering premises on business which concerns the occupier.

Whelan v. Van Natta
Pl came into grocery store to buy cigarettes, went back to the back, and fell down an unseen stair well, def, did not warn def of stairwell, jdt for Def, pl appeals.
TC said he was a licensee to whom no duty owed except to provide a safe place & abstain from intentionally hurting or (knowingly let appellant run upon a hidden peril).
Did his status change from invitee to licensee
Possessor of land is subject to liability to another as an invitee only for harm sustained while under scope of invitation. Ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he was invited to enter or remain. Whether he becomes trespasser or invitee depends on whether possessor consents to his remaining on the land. Invitee only invitee if he stays on part of land to which consent given. Purpose for which the land is held open or the particular business purpose is given great importance

If the invitee goes outside of the area of his invitation, he becomes a trespasser or licensee, depending on whether he has consent of possessor
Licensee if shopkeeper permits him to use restroom or pay a social call.
Judgment for def affirmed.

Child trespassers/licensees don't get the same rules as adults. Higher standard of care for children (generally)

Attractive nuisance- something a child will find tempting, a ll must use care to prevent harm. Children have to be attracted by the thing that harms them. outdated.
Restatement: subject to liability for harm caused by artificial condition if
(a) place is where children are likely to trespass
)B possessor knows or has reason to know of condition, and realises has an unreasonable risk of death or serious bodily harm to the children
C) the children by their youth do not discover the condition or realise the risk involved in intermeddling with it or in coming within the area made dangerous by it
D) Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved.
e) possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
(the condition no longer has to attract the children onto the land
(if children can read and signs are posted, ll's duty is discharged)

Public employees/officials don't fit any category, they can enter w/o landowner's consent. Not trespassers. Are they invitees? Some enter for a purpose connected with def's business- sanitary/safety inspectors. Firemen/policemen are generally licensees, owner must warn of hidden dangers.

Torts 1/24
Rowland v. Christian CA Sup Ct ‘68
Pl appeals from judgment for def Christian. Pl was social guest, (licensee) asked to use bathroom, a cracked handle of the faucet broke and severed tendons and nerves on his right hand. def knew it was cracked and had complained but did not warn pl.
Man is liable for his injuries caused by his carelessness normally, then we have all these distinctions btw. trespasser, licensee and invitee- and these distinctions are crap nowadays. They’re moving towards “ a single duty of reasonable care in all circumstances.” Factors which determine liability of possessor of land- connection btw. injury and def’s conduct, policy of preventing future harm, prevalance and availability of insurance, don’t have anything to do with these old fashioned distinctions. We have to view matters most favourable light to Pl- so Christian was aware that faucet handle defective, defect not obvious, pl was about to come in contact w/defect, she didn’t fix or warn. Trier of fact could reasonably conclude this is negligence, Guest might not have a right to expect that the host will remedy dangerous conditions, but might have a right to a warning.
Dissent, social guest should take the premises as the host finds them or permits them to be, we are entering the area of unlimited liability.
Under this approach, duty more often satisfied and easier to determine, breach is what is left. Older approach is easier to decide. Reasonable people don't think this way.

3 part classification of people is still the majority rule.

Previously, owner/occupier duty to persons outside the premises, now owner's duty not as occupier.

Tenant ordinarily had duty of care, not lessor, but then exceptions developed, see the 6 she was yelling about last week.

Lessor/Lessee
Borders v. Roseberry
Sup Ct Ks ‘75
TC: ll under no obligation/duty to a social guest of tenant to repair water dripping on stairs which then froze.
Traditionally lessee has burden of maintaining property in good order. LL/tenant relationship insufficient to make LL liable for torts of tenant. Lessee has title to land/estate for the period of the lease.
When can hold LL liable?

1)Undisclosed dangerous conditions known to lessor and unknown to lessee.
2)Conditions dangerous to those outside the premises. – if there’s something dangerous on the premises to people outside ll cannot escape liability by transferring to lessee
3)Premises leased for admission fo the public.
4)Parts of land (approaches, hallways, common areas) retained in lessor’s control which lessee is entitled to use.
5)Where Lessor contracts to repair
6)negligence by lessor in making repairs.

None of those things apply, tenant knew of icy conditions, shoulda warned guest, no liability of LL.

Pagelsdorf v. Safeco Ins. WI sup ct ‘79
Issue: the scope of a ll’s duty toward his tenant’s invitee who is injured as a result of defective premises. – whether the trial ct erred in failing to instruct the jury that Mahnke owed Pagelsdorf a duty to exercise ordinary care in maintaining the premises.
Holding: ll must exercise ordinary care toward his tenant and others on the premises w/permission.
LL mahnke owned two story duplex, Blattner rented upper unit. Railing dry rotted, Pageldorf fell. TC decided Pl was licensee of Mahnke’s and no knowledge of defective condition of railing.
If property leased, ll not liable for injuries to his tenants and their visitors. But ct chooses to abandon this and decide that ll is under a duty to exercise ordinary care in the maintenance of the premises.
Ct refers to basic principle of tort law: one is liable for injuries resulting from condut foreseeably creating an unreasonable risk to others.
Modern leases= contract not conveyance.
LLs now liable for persons injured, owes duty to exercise ordinary care. Remanded.

Pagelsdorf remains in minority.

Kline v. 1500 Mass. Ave. Apt Co. DC CT of appeals, '70

Kline, lessee of def, sustained serious injuries when she was criminally assaulted and robbed in her apt building. Doorman previously employed, but left unguarded, despite increasing crime
Is there a duty placed on ll to take steps to protect tenants from foreseeable criminal acts committed by 3rd parties/
DC said there is no such duty, this ct sez there is too, and you breached it! LL! Reverse and remand.
Duties result from LL's control of common areas. PREDICTABLE criminal acts = physical injury resulting from defect. Only person who can remedy is ll. Private person generally does not have duty to protect someone from criminal act by 3rd party. Generally criminal act is superseding cause. But nowadays modern day apt living has changed everything. Ll had notice, and ability to intervene. innkeepers have been held liable for assaults committed by 3rd parties. Tenant has submitted to control of ll so his ability to protect himself has been impaired.
LL had duty to protect tenants from foreseeable criminal harm. Huge move from old rule that they had no duty. LL-tenant is like other relationships (fiduciary?) which imply ll has to protect tenant. Really about control. Ll has power to make them safer. - ll is least cost avoider. Ll had notice that crimes were being committed against tenants in common areas, def had duty to exercise reasonable care. Doorman is an important fact here, voluntary assumption of responsibility and reliance by ll.Ct doesn't focus on this, though. Why else could it be important? Perhaps premises needs doorman to keep it safe. LL probably passed on cost to tenants.

DAMAGES
Damages are an essential part of pl's action in negligence and strict liability. Damage is the gist of the action. In trespass/most of the intentional torts, cause of action is shown by pl did qqch. Damages: if there aren't any, no cause of action, then question is, how much?

Nominal damages. Small $ to victim to vindicate rights, prevent def from acquiring prescriptive rights, etc.

Compensatory damages, help to fix loss suffered by pl. The only thing we CAN give is money damages.

Punitive damages; intended to stop def and anyone else from doing the same thing.

Spose pl doesn't end up needing all the $- def can't recover, but if pl ends up needing more $, more surgeries whatever then can't get more $ either.

Anderson v. Sears, Roebuck. US Dist Ct Eastern dist LA '74
Pl britain was severely burned when heater negligently manufactured by Sears and Controls company malfunctioned. Jury awarded 2 mil in compensatory damages. Defs say, too much! Maximum recovery rule directs trial judge to determine whether jury verdict exceeds the maximum amount which the jury could reasonably find, and if it does, judge may reduce the verdict to max the jury coulda awarded.
Elements of damages:
Past physical and mental pain: 600K
future physical and mental pain: 750 K
Past medical expenses N/A
Future medical expenses, 250K
Lost earnings N/A
loss of earning capacity 330K
Permanent disability and disfigurement. 1.1 Mil, so, nearly 3mil total, go away defendants.
Loss of enjoyment of life.

new concept: Remittitur, defs argue that pls awarded too much. Judge had to determine what the maximum amount that could be awarded at trial. if it's too little, then pl could accept lower amount, remittitur, or go to new trial for damages alone. Remittitur- grant a motion for new trial conditioned upon the refusal of the pl to accept a lesser amount.
Breach is only sometimes an issue, sometimes Breach is conceded by defs and trial ends up about damages.

Richardson v. Chapman, sup ct. Il, '97
Richardson hit from behind by chapman driving semi-trailer. Richardson got 22mil plus, passenger got 102K. Based partially on cost of future care and ongoing expenses. Richardson was paralyzed for life as a result of her injuries. Jury probably included $ not projected by Linke. We can reduce the cost somewhat. Passenger not seriously injured, but got 100K in damages, ct reduces.

Award of damages is excessive if outside the range of fair and reasonable compensation, or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.

Economic losses to be considered:
Medical expenses, past and future
Lost wages, if fixed, easy to calculate-
loss or impairment of future earning capacity, injury has to be permanent, expert needed to estimate what pl would have earned in his lifetime. Life expectancy tables, work life expectancy tables- damages can be awarded even to very young plaintiffs.
Damage calculation is present value, predicted interest rate a source of problems
Future inflation.
personal injury award not taxed, but punitive damages are.
Non economic losses
Physical pain and suffering, mental anguish
Loss of function/appearance (permanent disability and disfigurement)
Emotional distress
Litigation induced stress- not generally recognised.
Loss of enjoyment of life
Reduced life expectancy- they don't get it separately from loss of earnings.

Pl has to be alive and conscious to get damages for loss of enjoyment, defendants have perverse incentive to cause more injury to pl so that they are not conscious.


If amount was grossly excessive or inadequate, judge can order a new trial.

Some states cap damages- tort reform. Ga passed cap of $350K on non-economic damages in medical malpractice cases. Cap provides some predictability and protection for drs, keeping costs down. Normally only affects cases that are very serious and not frivolous, and juries would WANT to award lotsa $. What about the pl? A very young, seriously injured pl. Caps don't apply to punitive damages.

Loss of consortium works, but not for original person.

Bob is also pathologically frugal; he goes to the cafeteria and gets coffee, but puts a tea bag in it so they think that he's getting tea, and they only charge him 65 cents instead of 1.73. But then doesn't your coffee taste like tea?
yes he says, but only a little bit. He does not like Starbucks, because they refused to send coffee to the military, he apparently was in the Marines.

Do I have any pathologically frugal tips I can share with Bob? I do not think so. I will have to think of some, but most of them are like, "Bring your lunch to school" and "don't drink in bars" so those are not really good tips.

You do ask people what their lives were like before. Wasn't it true that you were miserable b/c of ~ X. You can ask some very awful questions during depositions to make pl want to settle.

Montgomery Ward v. Anderson, sup ct AK ‘98
Anderson was badly injured in a fall while shopping in Montgomery Ward store in Ak, they sent her to University of Ak Medical Sciences to be treated, cost 24,512. MW moved to prevent her from introducing this as evidence of her medical expenses, asked that evidence be limited to the actual amount that she would be responsible for paying, She had reached an agreement to pay 50%, Anderson asserted that the collateral Source rule would prohibit MW from introducing evidence of the discount.
TC said negotiated discount was a collateral source and allowed evidence of the entire $.
Rule applies unless evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages.
What is the collateral source rule? Must exclude evidence of payments received by an injured party from sources “collateral” to the wrongdoer, such as private ins. or govt benefits, They claim this does not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result. Double recovery ok, injured party has paid insurance/lost sick leave.
Rule does not apply and collateral source of recovery may be introduced
1) to rebut the plaintiff’s testimony that he or she was compelled by financial necessity to return to work prematurely or to forego additional medical care
2) to show that the plaintiff had attributed his condition to some other cause, such as sickness
3) to impeach the plaintiff’s testimony that he or she had paid his medical expenses himself
4) to show that the plaintiff had actually continued to work instead of being out of work, as claimed.
Ct can also allow evidence of collateral sources when pl opens the door to his/her financial condition.
Restatement sez; payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.
If pl is responsible for the benefit received, pl is allowed by law to keep it. If benefit was a gift to pl from a third party or established by the pl by law, the pl should not be deprived of the advantage that it confers. Don’t look at net loss, and if doctor doesn’t charge, tortfeasor is still liable.
This ct decides gratuitous medical services do fall under rule and excludes evidence.

Def's negligence caused pl's loss of work, Pl has disability ins which pays 80% of income she woulda received from job, should jury be informed that pl would receive this $? We could say yes, pl will be over compensated unless jury can take into account ins. benefits. Ins agreement may have subrogation clause, that if you get common law damages, you have to pay us back. What if family members agree to nurse pl at home? Should they be compensated? Yes. 'Member we want to deter, in GA collateral source rule is still good law. Tried to reform but declared unconstitutional.

Duty to mitigate damages:
Pl cannot claim damages for what would otherwise be a permananent injury if permanance can be avoided if a reasonable person could have done so under the circumstances. reasonable: see factors listed. Pl can't recover damages that could have been mitigated by reasonable conduct by pl after the surgery. Could pl have taken reasonable steps afterwards? Clear moral hazard- pl can swell damages and recover more $. So Pl had duty to mitigate. Def can't FORCE pl to undergo surgery, but if a reasonable person would have gotten surgery, she has to.

What about jehovah's witnesses? A reasonable person would accept blood transfusion but we also want to protect religion, and we don't know which way cts have gone.

Damages for losses of property, much easier to calculate.
If they take away property and return it unharmed, then I get = loss of use for a time deprived
If I am deprived completely, I get market value
If they damage I get difference.

Punitive damages, no reading and not on exam. Add'l sum over and above amount needed to compensate pl, we want to deter def- very controversial. Punitive damages can be bad for pls as a class, particularly in product liability cases. tobacco, asbestos, potentially huge pool of pls, limited $ for def, You want to get in early, and later pls may not even get compensatory damages. Also encourages litigation.
On the other hand, individual lawsuits= free market system and reduces need for gov't intervention.

If conduct is merely negligent, generally not enough for punitive damages, but what is beyond merely negligent varies, such as reckless disregard for the rights of others. GA- Who cares, it's not on the exam. She gave a long list. Jury factors- existence and magnitude of product danger to public- several other things. Punitive damages shouldn't normally exceed single digit ratio to compensatory damages. When might award that exceeds single digit ratio comport w/due process? We might have small compensatory damages and very high punitive damages. Bedbug case. People may not bother to bring a suit if they don't get very much in compensatory damages. Wealth of def considered when we discuss punitive damages.
GA non products liability, max punitive damages = 250K In GA, 75% of punitive damages something something gets paid to treasury.

Zimmerman v. Ausland Sup Ct Or ‘73
Pl suffered torn cartilage in her knee as a result of an automobile accident caused by the negligence of the def. She got 7,500 for permanent injury, can’t bounce around as substitute teacher any more. Def said if she had surgery, she would recover completely. So this isn’t a permanent injury. Pl is required to mitigate damages by surgery if a reasonable person would have done so, pl would not get damages for what might otherwise be a permanent injury. But if a reasonable person would NOT have done so, then no disability against recovering full damages. Risk, probability of success, and $, pain sometimes considered, but not here. We can’t decide this, pl has enough evidence of permanent injury so tc judgment affirmed.

Lump-sum award for future losses must be reduced to its present value. Why do we do this instead of periodic damages? Why don't we pay for surgeries when you actually do them? B/c that would require constant monitoring of plaintiff's health and cts don't want the hassle. We want final judgment. Corporation may not be around in 20 years. Most jDs recognise that we have to adjust for future inflation, we don't need to know different ways.

I like to listen to the sound of laptops clicking away, it's such a pleasant sound. Punitive damages like the little clicking of many hard-shelled beetles or rain on an unusual surface.
Punitive damages are taxable.

Well, I still think she's a girl, because wouldn't I say that guy over there? Yes I would.

Are we going to have to do all this math on the exam? NO.

O I knew about this. She said she had the Stephen Colbert book, and didn't understand it, so wanted to know if the lady next to her wanted it, and she said she didn't. I said I wanted it and offered to love her forever, an offer which she forthwith declined, and then I offered her a dented apple. She did not like this either. The lady behind me is mad because I was eating an apple in Criminal law. "Is Alan going to EAT while TALKING to her? She demanded. The answer, which she found regrettable, was yes, I was going to eat while asking the professor a question. So the lady behind me was all appalled, and I responded to this by making it even MORE disturbing. Also she wanted to know can't I eat the other 24 hours in the day. But look how skinny I am! I pointed out! I NEED to eat. [this particular professor] makes me hungry, I said. Looking at her [fascinating] outfits makes me want to put things in my mouth. This did indeed appall the lady behind me, I know you're going to put this in some kind of context that makes more-

Well, see, now it's not about my eating any more. I've taken it from the somewhat rude into the freakishly disturbing.

Yes, I win.

For next time, anderson/Zimmerman, 586-601.

Duty, proximate cause, and defenses are all ways to limit def's liability. Defenses only rise once pl has proven duty, breach, causation and damages.

That girl has like every word highlighted in her Butterfield case and all in the same colour, doesn't that defeat the point of highlighting?

What presentation is she talking about and Girth? O there was a presentation by an architect for the new law school.

Defenses: Pl’s conduct,
Contributory Negligence
Butterfield v. Forrester, King’s Bench 1809
Obstruction in highway, pl thrown from horse and injured.
Defendant put up a pole across part of the road, Pl left a public house, was riding very hard, did not see it, but was not intoxicated. if person riding w/ordinary care could have seen and avoided the obstruction, find for def. Pl objected and referred to case, Rule refused (?) (law barred pl’s claim)
Law could-
1) bar pl’s claim- 2) ignore pl’s culpable conduct- as in Worker’s Comp and no Fault automobile, 3) Law generally bars pl’s claim but also allows exceptions. Could leave to Jury- 4) law could compare pls fault with that of def and reduce pl’s damages. In only 4 states is contributory negligence a complete bar to recovery.
Types of contributory negligence:
Defense has a penal basis and pl is denied recovery as punishment for misconduct
Pl is required to come into court w/clean hands
negligence rules designed to encourage optimal care
Negligence is an intervening, superseding cause which takes away “proximate” element from def’s negligence.
Def has burden of pleading and proving contributory negligence
We like to give question of contributory negligence to jury, not do summary judgment or judgment as a matter of law.

Pl’s negligence can bar recovery only if it is a substantial factor in bringing about the damages. Def being at fault does not absolve pl from fault. Even though def was negligent, if pl was even slightly negligent too, that completely expunges def's fault, Pl gets 0. Why is this a good rule? Even before we get to defenses, pl has to prove duty breach causation and damages. Only then can/should def argue but for causation. We still want to encourage everyone to care for their own safety. Good for deterring pls.

Contributory negligence is not a defense to an intentional tort

Most states no longer recognise contributory negligence as a complete bar to recovery. All or nothing may not deter behaviour. Def might not be deterred from making super unsafe products if they are so obviously dangerous that pl assumes some negligence. We don't want to absolve def entirely by pointing out a little negligence on part of pl. We don't always want pl to bear 100% of loss, def may be insured and better able to bear burden. Defense viewed as very harsh.

Davies v. Mann Exchequer, 1842
Pl had fettered the forefeet of an ass, had it grazing, and def’s wagon hit the ass and it died. Judge said that ‘cos ass was fettered, it couldn’t get out of the way of traffic, but it still might be illegal if def acted badly. Action coulda been avoidable but for negligence of def and damages for pl.

Last clear chance doctrine invoked, yah, ass is in road but negligent def had last clear chance to avoid after the opportunity no longer avoidable to pl.

Became incredibly complex in some jDs., see note 3 P 592. Pl had blood alcohol level of 0.424.
Pl, dressed in a Batman cape,

What about Butterfield case? Pl would NOT have been helped in the last clear chance, the pole can't avoid the rider.

The groans, ineffably and mournfully sad, of Davies’ dying donkey, have resounded around the earth. The last lingering gaze from the soft, mild eyes of this docile animal, like the last parting sunbeams of the softest day in spring, has appealed to and touched the hearts of men. There has girdled the globe a band of sympathy for Davies' immortal 'critter.' It's ghost, like Banquo's ghost, will not down at the behests of the people who are charged with inflicting injuries, nor can its groanings be silenced by the ranting and excoriations of carping critics.

-can she please read the note at the end?

Doctrine of last clear chance, if def had the opportunity to avoid the accident after the opportunity was no longer available to the pl, def should bear the loss. Whole loss is placed on one party or another.

Comparative negligence
McIntyre v. Ballentine SupCt TN ‘92
Pl appealed, should we adopt a system of comparative fault in TN? Pl and defendant involved in serious accident ’86, causing serious injuries to pl. Both of them had had alcohol, Jury decided they were equally at fault and they rule in favour of def.

Yes, we should adopt a system of comparative fault, there are two kinds, pure, and each person gets their relative share, if they're responsible for 90% of injuries, get 10% of damages, and modified, the 49/50% rule, can't be responsible for more than 50% or is less than 49%. And then third approach, as long as pl's negligence is less than def's negligence pl can recover and pl's damages are to be reduced in proportion to the % of total negligence attributable to the pl. Pl's negligence not as great as def's negligence OR pl's negligence not greater than the def's negligence. Only difference between latter approaches is 50-50 but this is very common. Under not as great as, pl gets 0.

Why did they decide to adopt this- they were behind the times. 45 other states have, it just doesn't seem fair to completely deny injured litigants recompense through damages.

Why did they decide to do this judicially instead of legislatively? 'Cos the legislature might screw it up? No, contributory negligence was originally a common law doctrine so it makes sense for us to get rid of it.

Look at note 7 P 599, what is jury being asked to compare when it determines comparative fault? Is it based on the nature of the parties' conduct, as in whose actions were owrse, or the proximity btw the conduct and the injury?

She thinks juries should consider two factors-
relative culpability of each party's conduct. You're comparing breaches. Do B < P X L analysis for each party.
Jury should also look at causative potency for each party's conduct, the relative closeness of the causal connection btw the conduct of each party and the injury to the pl. if one of the parties breaches MORE of the proximate cause of the injury. Whose breach are you more comfortable with?
apportioning fault is very much a jury issue.

Detail questions are a problem in jDs which decide on this approach judicially instead of legislatively. TN decides to handle most of these details in its' opinion. Much of it is statutory in nature.

Ga tort reform:
2g- not as great as 50% Goes on at length about parties/nonparties. Statute does two other things. Allows a non-party's fault to be evaluated. Abolishes joint and several liability. What does that mean? You're only responsible for your own negligence. Each def is only responsible for his own portion of the fault. Concurrent tort feasors who created a single injury used to be held liable for the whole thing. Pl could only get one recovery. Why was this a good thing? because if one of them skips off, pl will still get paid. up to single defendant in group to seek out other tortfeasors and get contribution. What if other tortfeasors couldn't be found? single def to be held responsible for entire fault. McIntyre ct decided to abolish this also as being unfair to defs.
If pl sues multiple defs now, jury has to allocate fault btw pl and several defs. Each def may have a different assigned percentage of the fault, if def goes missing or has no $, and pl loses that $.
Wherw would abolishing the jt and several liability and allowing a non party to be brought in be bad for the pl? Rape in a parking garage. Most rapists don't have any $ and difficult to find, you have a non party that you can't even name. Who's more at fault, the rapist, not the garage.
Many jDs have adopted comparative fault without looking at joint and several liability. Ga's approach eliminates joint and several liability.

Joint and several liability- problem allocated among different defendants.

I can't tell if it's cold or warm. I sure wish I were on the beach drinking.

Express Assumption of Risk,
Seigneur v. National Fitness Institute Ct of Special App MD '00
Seigneur joins fitness club, and is hurt. there was an exculpatory clause in contract. NFI says that the clause is valid and enforceable and then they win, Seigneurs say that it's an adhesion K and void against public policy, and clause was unclear and ambiguous.
Was it ambiguous? In this jD, we don't need it to actually say negligence. Exculpatory clause is clear so it was unambiguous, and also generally valid in MD, w/exceptions

1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence

2) when the bargaining power of one party to the K is so grossly unequal so as to put the party at the mercy of the other's negligence,

3) when the transaction involves the other's negligence.

Yah they had an adhesion K but so what, they may not have had grossly disparate bargaining power, they had competition. So they didn't have decisive bargaining advantage also b/c not essential in nature.

Was the risk that injured the Pl within the express terms of agreement- yes. There doesn't seem to be a degree of fault greater than negligence. Is the agreement void as against public policy? See three above factors.

Tunkl case also lists several factors, although this court discounts, these are really the standard.

Public interest: - those business may not be exculpated.
A business of a type generally thought suitable for public regulation.

Party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

The party holds himself out as willing to perform this service for any member of the public who seeks it,

As a result of the essential nature of the service, in the economic setting o the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services

In exercising a superior bargaining power the party confronts the public with a standardised adhesion K of exculpation, and makes no provision whereby a purchaser may pay add'l reasonable fees and obtain protection against negligence

The person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Def operates dental school, but operates for free on people who want dental services, will ct enforce waiver signed by patients? Probably not. Overwhelming majority have found these waivers unenforceable, service of great value to public, practical necessity to some members of the public- so exculpatory clause cannot be enforced

But, def might argue some people won't get treated at all.

Next: Rush, Fell through floor in bathroom into "accumulation" and 610-637.
Is exculpatory clause in fitness club K enforceable? I think so.

Rush, Implied assumption of risk, two factors, Pl musta known of the risk, and pl musta voluntarily encountered it.

What's the difference between assumption of risk v. contributory negligence. In Implied assumption of risk, pl must have known of risk,- pl's conduct does NOT have to have been unreasonable. (by deciding to go rafting, nut unreasonable, but definite assumption of risk) in contributory negligence, pl should have known of risk, and also pl's conduct musta been unreasonable.
For contributory negligence- with respect to what risks was pl contributorily negligent? Have to be foreseeable and proximate cause.
3 elements to defense.
1) Breach, did pl act below standard of care of reasonable prudent person under circumstances
2) but for the pl's breach of the standard of care, is it still a breach
3) proximate cause, was this risk within the range of risks that the pl was contributorily negligent with respect to.

Pl may have been contributorily negligent w/respect to falling, but not so as to falling on a hook.

Last class discussed collateral source rule and necessity to mitigate damages. Under doctrine of contributory negligence, if pl even slightly negligent, then completely barred from recovery.
!st pl breached duty of reasonable care
Pl 's breach was proximate cause of injury.

Cts have various ways of ameliorating harshness of contributory negligence- Comparative fault.

Rush v. Commercial Realty, Sup Ct NJ '29
Pl were tenants of def, and there was an outhouse, and Rush knew that it was in poor condition and eventually fell through floor, 9 feet into "accumulation

Blackburn v. Dorta, Sup ct FL '77

Dorta, a minor, overturned dune buggy, w/minor pl within.
No more contributory negligence, we use comparative negligence, how does this work with assumption of risk, if assumption of risk = contributory negligence, then hoffman tells us it's not a complete bar to recovery. if it has a distinct purpose other than contributory negligence, can continue to exist unaffected by Hoffman. We didn't want to touch it in Hoffman.
most cts don't like this, we can either use contributory negligence or common law concept of duty instead. Assumption of risk frequently denies recovery. Most jDs hold that assumption of risk = contributory negligence, and they don't like it, and have gotten rid of it, so this one does too.

Only concerned w/primary assumption of risk, def not negligent 'cos he owed no duty to pl or did not breach the duty owed.

Secondary assumption of risk is affirmative defense to an established breach of a duty owed by def to pl..

All of these issues can be rephrased as duty of ordinary care by def.

Reasonable conduct which bars recovery is pure or strict assumption of risk, - ll has allowed tenant's premises to become highly flammable, and a fire ensues, tenant rushes in to save child in premises, but tenant is barred from recovering for injuries in rescue, he voluntarily exposed himself to a known risk.
Well, did pl voluntarily assume the risk in saving the baby? probably not.

unreasonable conduct which bars recovery is implied qualified assumption of risk. - tenant rushes in to save blazing fedora. We can use contributory negligence in place of assumption of risk. Even though pl acted unreasonably, can we find a difference btw this and contributory negligence? Could be musta known v. shoulda known.

Ct sez if you're injured by the inherent dangers in activity, then better to say def acted as reasonably prudent person, and no breach. Out with it!

What are we supposed to know from this? If there's evidence that you could say pl voluntarily encountered a known risk, say instead- def didn't breach. B is not < P X L
In some jDs complete bar to recovery, in some jDs only reduces damages, and we need to compare faults based on relative culpability and causative potency.

In most jDs Pl must have known of the risk and P must have voluntarily encountered it are a complete bar to recovery.

Note 3 P 613. Pl failed to wear seatbelt. Pl did not contribute to negligence. Should the pl's damages be reduced as a result. duty to mitigate is similar. Duty to mitigate happens after the event, but both of them are based on unreasonable behaviour. In either case, you
Another doctrine? Proximate cause? much like contributory negligence, pl acts unreasonably and this contributes to the pl's harm. Some states have statutes that don't permit a pl's damages to be reduced by failure to wear seatbelt. Pl's unreasonable failure to take advantage of measures to prevent injury should be taken into account.

There is contributive negligence per se.


Statutes of limitations and repose,

Teeters v. Currey
Sup Ct TN '74

Malpractice, does SOL run from the date of the injury or from the date of the discovery of the injury? '70 Pl gave birth and physician recommended tubes ties. '72 preggers again, severe complications, another tube tying. Pl brought suit 11 mos later. It was discovered in 2nd surgery 1st surgery negligently performed. Def argues SOL. Statute applies 1 year SOL after cause of action accrues, and we have some OLD decisions. 28 states use discovery rule, now so does TN- for med malpractice. Statute only begins to run when negligent injury is or shoulda been discovered.

Statutes of repose limit the time when cause of action can arise.

Def manufactured product in 1977, pl injured in 2007, Statute of limitations just sez that after a certain number of years after the injury then- no longer can sue. vs.
Statute of repose, after so many years after product manufactured, can't sue any more for injury, can't be sued for things made 40/50 years ago. Generally 10-20 years.

Can start SOL when injury linked to defective product, I.E. birth defects linked to chemicals causing birth defects.

Generally limit is 2/3 years. Most of them state begins to run at time cause of action accrues. generally, at the time injury occurs. What is the purpose of SOL? we need to present evidence, it's not realistic to present old claims. Witnesses die, evidence is lost.

Immunity, not privilege, justification or excuse. Spousal, governmental, parent-child, charitable, she mentioned a couple of others.

Privilege: avoids liability for tortious conduct under particular circumstances
Immunity avoids liability in ALL circumstances (govt's immunity)
Does not deny tort but ha ha you can't get me.

Families-
Freehe v. Freehe. Sup Ct WA '72 Neill, associate justice, seems a little bitter.
Clifford seeks compensation for injuries sustained due to def's negligent maintenance of the tractor, and def is HIS WIFE. Is there still interspousal tort immunity?
Def owns EVERYTHING. Pl apparently has nothing to do with the farm. Old rule comes from supposed unity of husband and wife, as one legal entity. This stupid!
Second reason, don't want to destroy the peace and tranquility of the home. But if they were really peaceful, wouldn't be bringing suits.
Injured spouse also has other adequate remedies, through criminal or divorce, but there's a whole bunch of stuff not covered.
We don't want to flood the courts with trivial suits, no , this hasn't happened.
We don't want to encourage fraud and collusion, That may happen, but we'll deal with it when that happens.
Interspousal immunity in personal injury is abandoned. Most jDs have abandoned.

Renko v. McLean. Ct of app of MD '97
Parent-child immunity reaffirmed. Only a few people have kept this.
Renko, 17, suffered injuries in a motor accident, sued her mother at 18.
We don't want to destroy the family, fraud and collusion, intrafamilial litigation.
Immunity rule came from common law.

Exceptions; Abuse, or business partner's negligence.
Renko sez;
Adult children should be allowed to sue parents for injuries incurred when they were kids- ct sez; in certain cases, murder/suicide, or business partner, there IS no home to preserve, and we don't like you Renko! So we're going to continue to ban this dispute btw parent and child.
we now have compulsory motor vehicle liability ins. ct sez; yah, well, there aren't too many of us left denying this recovery. We just don't feel like it.
violates articles 19 and 24 of MD declaration of rights and 14th amendment.

Rule eventually changed by legislature, abolished only for car accidents and up to amount of ins cover.

In this case, parent-child relationship is tangential to injuries, but could child sue parents if they allow him to run out in the street and get squished by a car?
Some jDs have abrogated only immunity in car accidents and kept it in more child-parent relationship cases.

Charity- charitable immunity is no longer recognised in many places, charities aren't really charities the way they used to be. Charities are more of private business and we don't have to worry so much about them going under. Nowadays charities have hospitals- commonly sued, and also charities have public liability insurance available to them.

Abernathy v. Sisters of St. Mary's Sup Ct MO '69
Patient sues hospital for negligent treatment, and def claims it's a charity and therefore immune, ct agreed, does this ct?

660-678 for next time. Exams were- overall very good but the grades suck. how to do better? must improve grade! compare exam to high scoring exam. She's put it on e-reserves, go issue by issue, look at how I did it v. how it was done on the high scoring exam. Issue spotting not a problem, generally analysis. Email Timmons with name and exam # and she'll make it available on 4th floor.

You can take it! but it has to come back to her, the original. Don't put it in big brown folder, give it to her in class. Can meet AFTER we have met with her and compare with higher scoring exam.

Vicarious Liability
A is negligent, B is not, C is injured by A's negligence. Because A and B have a special relationship, B is responsible for A's actions, although B has played no part in it, has not aided or encouraged it, and may have done everything possible to prevent it.

If B sues C can't recover b/c of A's negligence, just as though he himself had been negligent. (Implied contributory negligence)

B may become liable just as though he had been negligent, called imputed negligence or vicarious liability or respondeat superior.

Why? need to find the $. Employer generally responsible for employee actions. This is somewhat akin to strict liability since there may not be any fault on the part of liable party.

Some girl has brought like an entire GALLON of some kind of brown drink, it could be tea? But it is somewhat cloudy. Maybe it's that diet stuff made with cayenne pepper and maple syrup and vinegar or whatever I was reading about yesterday. I can't imagine drinking that much of anything during the course of the day. it is now half past one and she hasn't drunk more than a third of it.

Y'all guess who I get to have breakfast with next week in addition to Jessica Harper! Yes! We can share fashion tips. Perhaps I'll let her borrow my fur coat.

Bussard v. Minimed, CA ct of app, '03

Minimed hired pest control co to eliminate fleas, Hernandez feels ill, goes home, rear ends Bussard. Bussard sues Minimed, alleging that Hernandez was within the scope of her employment when driving home ill from pesticide exposure.

Minimed sez; going and coming rule means not within course and scope of employment so they are not liable. TC agreed, now appealed.

Respondeat superior: employer ordinarily liable for the injuries its employees cause others in the course of their work. Employer does not have to be negligent and employer does not have to control employee.

Course of employment = expansive, personal acts while at work are inside course of employment.
Vicarious liability extends to willful and malicious torts of an employee as well as negligence
Employee's tortious acts may be within the scope of employment even if it contravenes an express company rule and confers no benefits to the employer.

Cts do not have it include commute. Going and coming rule places commute outside the scope of employment.

But there is an exception! when employee endangers others with a risk arising from or related to work. Case law applies a foreseeability test, employee's conduct is neither so startling nor unusual that it would be unfair to include the loss resulting from it among other costs of the employer's business.

Such as- drinking alcohol at work. And here we have - pesticide exposure at work, so that is foreseeable that she couldna driven home. Going and coming found to be an "analytical distraction", but really we have Hernandez as an "instrumentality of danger" 'cos of what happened to her at work.

Hernandez' decision to go home was a fortuity that must not obscure appellant's central claim that Hernandez' job had contributed to the accident.

Respondent argues foreseeability exception does not apply 'cos it was not negligent.
Supervisors diligently inquired into Hernandez' ability to drive home. Ok, fine, respondent not liable for negligence, but we still got you on vicarious liability! Ha ha ha!

Scope of employment should turn on whether the acts of the employee are so connected to his employment so as to justify requiring that the employer bear the loss.

O'Shea v. Welch 10th cir '03

Welch went to get tickets and stopped at petrol station, hitting O'Shea's car. O'shea sues Welch for negligence and Osco for vicarious liability.
But dist ct said shut up about vicarious liability, you stoopid, because sure he was taking the trip as part of his employment but not the stop at the petrol station.

Scope of employment: performing services for which he has been employed or when he is doing anything which is reasonably incidental to employment. Doesn't matter whether employer permitted it, should conduct have been fairly foreseen from the nature of the employment and the duties relating to it. We don't know.

Appellant sez; adopt the slight deviation rule, why dontcha! of the frolic (?) or the detour was a deviation sufficiently related to the employment to fall within its scope, but the frolic was the pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment.

If employee abandons, even for a little teeny bit, the employer's business for personal reasons, act is not within the scope of employment.

Diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, unless the very character of the diversion severs the employment relationship. Personal acts are not generally considered deviations.

Jury should decide. Is it a deviation? Factors.

1) employee's intent
2) nature, time and place of the deviation,
3) the time consumed in the deviation
4) the work for which the employee was hired
5) the incidental acts reasonably expected by the employer
6) the freedom allowed the employee in performing his job responsibilities.

Welch wanted estimate on non-emergency maintenance on a business use car, so could be enough of a mixed purpose. At the time he hadn't yet entered service station so still en route to service station. Not a long deviation, in his position, he has some freedom, Osco coulda reasonably expected certain deviations to take place. If he was within the scope of employment- then Osco is liable. We aren't sure but it's a good question.

Ct never decided whether the entire trip was within the scope of employment. if the entire drive was outside the scope of employment, then the detour certainly is.

Is attending the football match outside the scope of employment, is it a private endeavour? Would they be within the scope of employment and collaborating, helping the relationships btw. managers? He was representing vendor instead of employer, outside control of employer. Is this really one of the risks inherent in employing and hiring a drugstore manager? Osco didn't buy the tickets for distribution to vendors. How was it in the scope of employment? This is an opportunity for informal employee collaboration and it's a retreat. Hee, retreat. Perks- that's what keeps people at Osco. Drive from one company place to another- for other Osco employees- so probably within scope of employment.

Does this doctrine of Respondeat superior further the tort law goal of compensation? Absolutely! All the theories of vicarious liability- deeper pocket.
Well, why don't we just say that employers are liable for ALL the torts of
their employees. -that would be a bad thing! Employer has incentive to now police everything that you do. Who'd hire anyone?

An employer is in a good position to manage certain kinds of risks, those which fall within the scope of employment.

Let's say that pizza delivery company institutes and enforces strict driving laws, an employee speeds and injures someone while delivering- it still occurred so, still liable. Why, note 2 on page 666. Employer does NOT have to be at fault, basically, strict liability.

How is employer supposed to stop liability under respondeat superior? There really isn't the same level of deterrence.

Whether employee is acting w/in scope of employment is very fact intensive and usually goes to the jury,

Vicarious liability for intentional torts. respondeat liability is not limited to negligence, if intentional tort is w/in scope of employment, depending on in whose interest the tort was committed in. Example, if you employ a bouncer- could commit an intentional tort. If tort was purely for benefit and selfish purposes of employee, then no.

Baseball player intentionally beans heckler- how is it within scope of employment, he was being heckled- he's throwing the ball at someone. Acting in the favour of his team. They should shut up! Great intimidation factor for his team. Orioles could be vicariously liable if the pitcher was doing it to enhance the performance of his team.

Minister sexually assaults parishoner. Preacher forms fiduciary relationship w/parishoners, he's not supposed to go that far but- maybe it's not that different from someone speeding while delivering pizzas. Preacher was doing research? But this conduct was not really involved in their job- not really a detour.

gibson v. Brewer. TC granted summary jdt - intentional sexual conduct and etc totally outside scope of employment.

What other theories could diocese been liable? Liability not found under respondeat superior- not within scope of employment- but Recklessness? B/c could be directly liable for its own negligence. If knew or shoulda known that minister had previously assaulted parishoners. If employee commits tort, is there no negligence by employer and RS and is there an argument that the employer also is at fault. It looks like both things can be true at once- yes, we can have both RS and also direct liability

Si je l' epouserai, je serais Alan la reine, qui me rendrai heureux.

I should offer her some chocolate. Sigh, that reminds me of the Dominican Republic, remember they played that song! Now who will I go to the beach with? No one this year 'cos I'm going to Austria.

Implied assumption of risk- pl must have known of risk and taken it on, it's not much of an affirmative defense any more in many places b/c of contributory negligence.

Pl voluntarily encountered a known risk, implied assumption of risk, if pl also acted negligently, then argue for contributory negligence, in some places, contributory negligence is complete bar, most places use comparative fault, explain three approaches, and explain that in many places implied assumption of risk something something. She has a handout! Yay! Part of an old exam question. will cover everything through vicarious liability, and little reading for tues, write it out, discuss in class.

Defenses of SOL and statutes of repose. general rule for statutes of limitations purposes v. Discovery rule, spousal immunity is gone for the most part but we still have parent-child immunity.

Independent Contractors
Murrell v. Goertz, Ct App OK '79

Murrell was battered by Goertz? His employer is newspaper company. Murrell asked him about damage to screen door, she slapped him, he fought back. she ended up in the hospital.

is he an independent contractor? If you have the right to control the physical details of the work.- then you're an independent contractor, ultimate control over the territorial boundaries of Goertz' route (order of route doesn't matter), appellee set policy that paper deliveries completed by 6 a.m., all held by rubber bands, customers who were missed by the carrier called appellee, to report, complaints concerning the service lodged with appellee, new subscribers called appellee to initiate-

Location matters, did he work on company premises? to what extent did company regulate working conditions, was he paid on a time basis? or per piece or per job basis. Who supplied the tools necessary to perform the work? Even if the person you hire is an independent contractor, you may be directly liable in negligence.

Westbrook was independent newspaper distributor who hired Goertz who was collecting $ for Westbrook- so he wasn't an employee, they really didn't know anything about his work.

We have some definition of employee and independent contractor- see p 669 note 1.

Maloney v. Rath, Sup Ct CA '68 Sup Ct CA '68

Def had auto accident w/pl, caused by brake failure, def didn't know brakes had failed, had been overhauled by mechanic. TC sez: negligent repair cause of accident, jdt in favour of def, pl appeals.

Why is this not strict liability? B/c we're not in that chapter yet.
When they don't work b/c of negligence- so not strict liability, owner is always responsible.
In CA can hire someone to repair brakes- but you are liable if that person is negligent. here's an exception to the rule that no vicarious liability for negligence of independent contractor.
Where the independent contractor performs a nondelegable duty, you remain responsible for that duty, so you are responsible if that contractor is negligent. CA Sup Ct holds that duty to maintain brakes is non-delegable. You can sue the independent contractor, but that puts burden on def.

Could you join mechanic in this suit? yes, you could file cross-claim against mechanic.

Some cts have stated that non delegable duty is where contractor is hired to perform inherently dangerous activity. Note 2C p 672. Inherently dangerous activity is listed as a separate rule. We already wrote about the peculiar risk of harm part. Peculiar risk of harm calling for more than ordinary precautions- for example, installing/repairing windows in skyscraper, things could fall onto people below.

Contractor leaves board on sidewalk while repairing windows in skyscraper- is owner liable- maybe- is the board connected to maintenance of the windows. But for- But board doesn't pose peculiar risk of harm- vicarious liability results from that things may fall from sky, but not board, which is not an unusual or peculiar risk. Vicarious liability does not apply to collateral negligence, which is not related to peculiar risk resulting from activity- so if contractor's truck gets into accident on the way to work site, or while moving products around, not liable, but if while doing something particularly related. yes, this could count for intentional torts as well. Depends. Peculiar risk is stuff falling due to negligence, not stuff falling due to deliberate throwing.

oooo she is busy writing something down.

Sup Ct Ca- motorist not strictly liable for damage caused by brake failure, exercise of ordinary prudence a valid defense, could vehicle owner delegate the responsibility of making repair to independent contractor?

Nondelegable duty operates not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore be properly held liable for the negligence of his agent, whether employee or independent contractor-

We want compensation! We don't need strict liability to ensure compensation (that's basically what this is) - see how this fits into respondeat superior? The employer is held responsible for negligent acts of employees.
Many cases of nondelegable duty;
1) those imposed by a public authority as a condition of granting a franchise
2) the duty of a condemning agent to protect a severed parcel from damage
3) duty of independent contractor to exercise due care when unreasonable risk of bodily harm is created
4) duty of landowners to maintain their property in reasonably safe condition and to comply with applicable safety ordinances
5) duty of empoyers and suppliers to comply with safety provisions of the Labour code.
6)duty of a general contractor to construct a building safely

We like to apply this rule in activity that threatens grave risk of serious bodily harm or death, which motor vehicles do.

How does the imposition of liability on the theory of a nondelegable duty differ from strict liability?

Normal rule: independent contractor liable for own negligence and insulates its employer. But here are exceptions. Duty can be delegated but responsibility remains with owner. No obvious criterion.

Strict liability applied when activity involves a peculiar risk of harm that calls for more than ordinary precaution-

Joint Enterprise
Popejoy v. Steinle- Sup Ct WY '91

Mrs. Steinle, w/ daughter and niece, went to buy a calf. En route truck collided w/ Popejoy vehicle, Steinle killed, Popejoy injured. After a while injuries worsened. Tried to claim against her estate, no dice, tried to claim against her husband's estate, no dice, Filed claim against personal representatives based on Husband and wife were engaged in joint venture.

TC sez; nuh-uh, the Mr. had no financial or other interest such that vicarious liability could be imposed upon him for what his wife did.

Popejoys have burden of joint venture relationship.
Joint enterprise more or less = joint venture
1) agreement, express or implied, among the members of the group
2) common purpose to be carried out by the group
3) community of pecuniary interest in that purpose, among the members
4) equal right to a voice in the direction of the enterprise which gives equal right of control.

This is a commercial concept, we don't want to extend it to social/familial situations. Popejoys contend that Steinles were buying an asset for business- but normally father did not have ownership in cattle, she mother and sister raised and ownned. Not his business. Grooms, par contre, said Steinles didn't separate income/expenses, Connie did the work b/c of Mr's poor health. He said overall joint venture. But only daughter will benefit by calf purchase, so- and it was a family undertaking- but no joint venture. We have to have shared commercial/profit motive.

Why?
if it's a commercial enterprise, you're getting insurance and profit for that. Working together to create a shared profit. Every activity creates some danger of injuries to others. Fair that members of the enterprise share costs.

i went and looked at that hot air car yesterday. It was an '85 looked in good shape.
Nice Gunmetal grey with the light grey interior- no electric windows, power seat, pioneer stereo, looked pretty stock. Missing one of the wheels? He didn't know if he wanted to sell it or not.

This professor has declined my offer of chocolate. It's good chocolate! it came from Aldi!

She makes me think of car porn. I will have to post some pictures of some car porn for y'all to look at.

O look, here is my favourite professor in a skirt! Yay! yes, I am hungry.

What's the difference between vicarious liability from strict liability?
Strict liability does not require negligence on anyone's part, but someone has to be negligent in vicarious liability. Imputing first person's negligence to the second person based on the relationship between the parties.

Minister engaged in consensual sexual relationship w/parishoner, is there vicarious liability? is the duty of care breached by minister? That's what it depends upon.

Respondeat superior is one form of vicarious liability occurring in employer -employee relationship, there 1) must be this relationship and 2) must be w/in scope of employment, (either what he's doing for employment or fairly foreseeable related conduct)
Inevitable loss incident to employer's care- some courts distinguish betw. frolic- abandonment of employer's business in pursuit of employee's business, detour= slight deviation from employer's business w'in scope of employment. All cts distinguish, but not everyone uses the same terminology.
Employers can be liable for employees intentional torts. General rule, not vicarious liable for torts of independent contractors (Orly? wHICH CASE?)

I've missed about 2/3 of what she was saying.

Bailment does not make bailor vicariously liable for use of bailee in use of chattel. Bailor gives, bailee receives, if bailee is negligent in the use of the chattel, vicarious liability does not apply, so if I loan car to qqun, I am not vicariously liable for friend's negligence. Under our common law rule, can we still have a cause of action? Well, you might have negligently lent chattel. I'm so mad I could kill someone! Can I borrow your gun? This is called negligent entrustment, you know better than to lend this person this thing

Shuck v. Means, alters common law rule w/respect to automobiles, if operate car w/consent of owner, owner can be liable b/c operator is agent of owner. How broadly does this ct interpret implied consent? It's pretty broad, ct found that parent gives child to car and sez, don't let jean-pierre drive it, il la ramene en pieces detachees, papa IS dans le coup. Hertz lent car to Codling, who lent car to Means, Hertz does NOT want Codling to lend car. Owner has consented!
Proving lack of consent in these situations and someone who takes car from owner, and someone takes car from 2nd person, Basically, third person has to have stolen car from 2nd person, or 2nd person has to have stolen car from 1st person. What's the purpose of this- it violates the meaning of consent! Insurance, who has ins on vehicle? Finding a deep pocket. What about if something failed on the car and injured third person, could third person sue owner/person they borrowed car from? She doesn't know. A's ins can go after B and C. Note 3 p 680. Omnibus clause in standard automobile liability ins coverage, covers car
Consent is interpreted to be that broad.

VICARIOUS LIABILITY = QQUN HAS TO BE NEGLIGENT FIRST. NOT STRICT LIABILITY.

We now have a WHOLE NEW TOPIC, on beyond negligence to strict liability.

What activities by a def make def subject to strict liability? Animals.

Strict liability results from care of particular animals in particular situations. What's the law about strict liability for animals.

Wild animals- Owners and possessors of wild animals are subject to strict liability if animal escapes and injures someone. Wild animals are wild animals and there's some negligence in just owning one. This conforms with reasonable standards of ownership. Owning a wild animal is a really dangerous activity and one that most members of the public don't engage in.- we don't want to encourage this behaviour and we want them to exercise extreme caution in owning one. O remember how the judge was asking Ola about damages? see you have to have damages for negligence.
Question if is animal wild, is a question of law not fact. What about the zoo thing? Some jDs have statutes that protect zoos. Where do we get this hypo she keeps talking about?

Why not have all injuries caused by animals strict liability? Dogs and cats have social utility. Not dangerous, many people own them, it might be safer but fewer people will own the animals, and that could be negative.

See bottom of 690, can you show that owner knew it was vicious by showing that it was a particular breed?

For next time, assignment is- o she's going to give us the handout problem. Write it out. Thurs- 692-716.


Barnyard animals-fenced in v. Fenced out theory. Common law- trespass- owner liable for all trespass. Rule has been modified. If you fail to fence in animals and they cause damage, you may be liable- depending on jD. Different approaches depending on jD- you have to fence in animal or you will be strictly liable if animal trespasses.
Or pl has to fence in land if he wants to keep animals out and hold owners strictly liable.

Domesticated non-barnyard animals- if you know or should know they're likely to bite, then you're strictly liable for injuries caused by their injuries. (dangerous propensities abnormal to its class) Only liable if negligent unless you knew it was dangerous.

Liability imposed on those who keep, possess or harbour the animal even if not the owner. Strict liability is not available against the owner once someone else has possession of it.

Timmons hypo-

10 unpaid for people, we don't know who's paid for and who's not.
Bart, referee, is he employee? or what, he's not paid. Warned

Connie ran as fast as possible, is that due care, or not, special exception? Bart had dug trench and hidden it.
Maloney-> 681, 686-691

In some states, owner consent statutes make owner vicariously liable for someone using car w/owner's consent.

Then we learnt about strict liability, def liable even w/o fault, we learnt about barnyard animals and trespass, non-domesticated wild animals, strict liable if injure someone, if domestic animal, only strict liability if dangerous propensities abnormal to its class

Thurs, p 692-716.

Elle a l'air d'etre en tres mauvais humeur aujourd'hui.

Paintball hypo.

all of those ladies had j- names! Jessica, Jennifer, Jewelle,

Ok, Lisa said invitee/all that stuff. Premises liability is a good place to start, did Armageddon breach duty of care to her. She wants to argue that she's an invitee?

Definition of invitee is, on premises to further owner/operator's purposes. Mutually advantageous business purposes. Rule has to be stated, doesn't have to be in separate sentence, but it's advantageous. We have to put all the elements. Ok, so she was on the premises, was she there to further the owner/operator's purposes.

WRITE OUT THE ELEMENTS OF THE RULE, ANALYSE EACH ONE.

Invitee, she's part of a group that paid to enter the premises. Went onto premises open to public for a particular use, she went for that use, -- not so good, we don't want everyone to sneak in.

Duty owed is reasonable care to keep the premises safe, armageddon wants to argue that they didn't breach the duty owed to her, custom? Use B < P x L, can't make it completely open, They didn't actually put the hole there? Yes, but- couldn't see it from a distance, but she wasn't from a distance when she ran into it? It's maybe not the best use of that fact- trenches not abnormal in war, she had assumption of risk? Hidden obstacles don't really make it unsafe, that's what's expected in war simulation. You could easily see it from closer, premises reasonably safe if she had watched where she had been going, she wouldna fallen in. She was warned by Bart. What does it take to make these premises reasonably safe? The warning was enough.

There is a breach of the duty- people aren't looking where they're going, they're trying to hit each other. People will move quickly and not look right in front of them all the time, her vision will be impaired b/c of goggles, Hidden hole is not the same as a hiding place, concealment of hole precisely just this kind of danger, you expect people will run on while wearing goggles and avoiding being shot. Hidden obstacles under those circumstances would make premises not reasonably safe. Gravity of harm very serious. She should expect only natural obstacles b/c of the wild warning, not artificial obstacles.

Armageddon will argue she's a trespasser, on premises w/o permission. entered w/o paying. She mighta been someone who paid or didn't pay. Caucci decides they all paid half price, so they're all trespassers. None of them paid full price!

Damn everyone's getting smarter except for me.

Duty owed to trespasser is- no duty to directly harm? Keep from injuring them by active operations, use ordinary care, no duty except that if and when must use ordinary care to avoid injuring them by active operations.

Not this known/unknown thing. What was someone doing once she was on the property? If you found that some of the people were invitees and some were trespassers, could she have the invitee side? Rowland v. Christian and throw away different standards would be a good idea. what if we focus on Bart's conduct, the active conduct of giving them warnings? Maybe not such a great argument, but that's what you've got if connie was a trespasser. Could they be children? No. If young adults, and entering paintball, should there be an anticipation of trespassers? No, let's not go there.

One rule that applies.

Licensee. She thinks it's not a good argument. NO POINTS FOR RECOPYING OUTLINE. IF THERE IS A PLAUSIBLE ARGUMENT FOR LICENSEE, THEN YOU GET POINTS, She's on there for her own benefit by permission? Ya she's got the own benefit, she could have implied permission, she was let in! If the person took the $ and let them in, then they had permission- ok, not way good.

There WILL be a product on the exam which will hurt someone, and a vicarious liability issue. There may not be a premises liability argument. Must warn of hidden dangers known to owner but not licensee, Hidden implies that licensee didn't know. Owner HAS to have actual knowledge of danger, Breach- she had a warning.

don't make up facts. It's to Armageddon's advantage for people to be there and have people enjoy, we can't just have 1 person play, don't spend too much time.

Pl's other claim is respondeat superior issue, may be vicariously liable for Bart's negligence. Bart was an employee acting w/in scope of employee or independent contractor, or what? NO, Bart has to be negligent first. Someone has to be negligent, it may be fairly obvious that Bart was negligent,

Employer liable for torts of employee committed w/in scope of employment. YOU MUST WRITE THIS AND ARGUE SCOPE OF EMPLOYMENT AND ARGUE EMPLOYEE, WHAT'S THE DIFFERENCE.

Independent Contractor, who pays you, how, job or piece? Who has control? Employer doesn't have as much control over independent contractor, - latter according to own methods and manner, la la la, definition. For independent contractor all employer cares about result, employee, employer cares about process. We want Bart to be an employee. did he have regular hours? He couldn't show up any old time, he has a uniform, and equipment, they have an interest in hiring him, very central to Armageddon's business, they control the details of his work by uniform and telling him what to do, but he could have been an independent contractor, he was there to make course more exciting, had creative leeway. All they're interested in is finished product. He was paid by the job, being able to play whenever he wants. Not a salary/hourly rate, so not an employee, Not closely supervised, not close direction, Outfit not a uniform but a perk.

Scope of employment? How could Bart have been negligent? Failure to warn v. insufficiency of warning no, negligence in digging the trench v. warning problems.

His negligence in digging the trench is outside the scope of his employment, he had to suggest these things but not actually do them. Scope of employment- what's the standard. Acting in furtherance of his master's business or at his master's direction. Not so much. Frolic v. Detour. is it an abandonment or is it a slight deviation. Doing something he's employed to do or reasonably incidental, is it fairly foreseen and the duties related ot it, were employee acts so related to the employment, is this a risk inherent in the nature of the employer's business.

He was employed to make it more exciting and did. Spose armageddon sez, you were just supposed to suggest! Ah but it's a deviation, reasonably foreseeable, not a frolic, etc, risk apparent in having loosely supervised referee sugges tthese things is that he will go ahead and do it,

But, his digging the trench btw. games has nothing to do with what he was sposta do, b/c it's btw games.

Negligence is not warning about trench. Purpose of job was safety, and so digging trench is negligence, he shoulda warned w/particularity about a safety hazard, counterargument is no, it's goggle enforcement.

What if he's an independent contractor, to find him liable has to be some kind of nondelegable duty, b/c inherently dangerous activity. He was hired to enforce course safety, non delegable duty, might be an inherently dangerous activity, making suggestions is non delegable duty, many of these things are non delegable duties.
Can't say paintball is an inherently dangerous activity, that's not what he's hired to do. When the work involves a peculiar risk of harm that calls for more than ordinary precaution. Enforcing paintball safety probably best thing to go with as inherently dangerous activity.

We still want to talk about collateral negligence, is the risk that injured the pl the risk that made this an inherently dangerous activity in the first place? So enforcing paintball safety might be what you want to focus on. We need to see that digging trench/warning about trench may not be the same thing as goggles goggles goggles.

Spose he's just a volunteer, he's doing something for you, so he's probably at least an independent contractor. If he weren't there would they have to hire someone? That is a good argument in favour of his status as an employee.
Voluntary assumption of responsibility, we don't have to go that route, we have affirmative actions by Bart. There will probably e a failure to act on the exam. We don't have to go into special relationships.

Next class, defenses to negligence issues. 692-716. Email her to review exam. No more time to do that.

Abnormally Dangerous Activities

Rylands v. Fletcher, 1865, England Poor Alicia, she doesn't look well! That means, I'm like, due.

Verdict for Pl subject to the award of an arbitrator, empowered by ct order to state a special case instead of making an award. Material facts were

def owned mill, they constructed a reservoir w/ wilton's permission, pl was working mines close to reservoir, they worked mines until they came to old workings, def employed good engineers etc to build reservoir. Old workings lay underneath it, and then they dug down and the miners dug forward, and there was no personal negligence or fault by defs but engineers and contractors had not exercised proper care to provide for sufficiency of the reservoir (shafts) to bear the pressure.

Shafts burst, and flooded mine, could pl recover damages, there was no immediate damage but mediate and consequential dmaage, there was no nuisance b/c defendants were doing a lawful/reasonable act. There must be negligence by def to make him responsible. Pl was damaged by his property being flooded by water which broke out of def's reservoir. Pl must bear the loss unless he can point to something for which defs are responsible.

what obligation does law place on dangerous conditions like what defs have? He has an absolute duty to keep the danger in.

Rule of law is that person who collects and keeps anything dangerous if it escapes must keep it in at his peril and if not, is prima facie answerable for all the damage which is the natural consequence of its escape, can show that escape was due to pl's default, or escape is consequence of some oddity, but neighbour who brings something not naturally there, harmless to others as long as it stays put but mischievous if it gets out, owner is responsible. Beasts, water, filth, or stenches. Judgment for Pl.

Why weren't def's found liable for negligence by engineers and contractors? She thinks that the engineers and contractors were negligent. What's up with vicarious liability? Definitely not employees,
Def not overseeing means and manner of what/how they are doing. Defs did not control details of the work. Construct a reservoir for us and lump sum, they brought their own tools- (how does she pronounce tools? It's like two- uhls. How do I pronounce it?)

Cairns, if not natural use of land, then def is strictly liable for harm caused. Ask her about Turner's bison. This case marks the beginning of strict liability for abnormally dangerous activities. GET IT RIGHT, ABNORMALLY DANGEROUS ACTIVITIES. Not the same thing as inherently dangerous activity- that's vicarious liability and independent contractor, former is tougher standard.

Celui qui louche (le loucheur?) n'est pas ici aujourd'hui.
Miller v. Civil constructors, Inc
Ill Ct of App '95

Miller appeals from cir ct order dismissing strict liability counts of his complaint against defs. he was hit by stray bullet during firearm practice. Alleged that defs strictly liable for injuries to pl resulting from 'ultrahazardous activity" from control of premises or discharge of firearms.

Strict liability results from abnormal/unnatural use fo def's land and abnormally dangerous conditions and activities.Is this discharge of firearms abnormally dangerous?
Discharge of firearms resulting in injury is negligence and standard of care is ordinary care, in this case a high degree of care b/c of particular circumstances
Should it be an ultrahazardous activity

a) existence of a high degree of risk of some harm to the person, land, or chattels of others;;
b) likelihood that the harm that results from it will be great
c) inability to eliminate the risk by the exercise of reasonable care
d) extent to which the activity is not a matter of common usage
e) inappropriateness of the activity to the place where it is carried on
f) extent to which its value to the community is outweighed by its dangerous attributes

We weigh all the factors, don't have to have all but we do need several. is the risk created so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care.
Use of guns/firearms not ultrahazardous, risk of harm can be virtually eliminated by exercise of reasonable or even utmost care. Ultrahazardous activities are such that no degree of care can truly provide safety. We need a high degree of care. Use of firearms common, danger is in their misuse.
This was a firing range in a quarry, entirely appropriate place.
There’s social value to the community b/c police officers were practicing.
Judgment for def.

See Note 8 P 709.

She emphasises, it's not the product that's abnormally dangerous as this claims, but really the activity that has to be abnormally dangerous for strict liability.
Activity is shipping the stuff by rail, through Chicago.

ct thinks, no high probability of serious harm- This is only dangerous chemical #53.

So is this like that movie, the wages of fear? That would be an abnormally dangerous activity, shipping the nitroglycerine by truck.

Negligence is a sufficient theory to deal with this problem.
How did ct analyse inappropriateness of activity to place. Ct points out that alternate route might be worse, judge not jury weighs the 6 factors and decides this as question of law.

Indiana Harbour Belt RR co. v. American Cyanamid, 7th cir ‘90
’79, Cyanamid loads 20K gallons of acrylonitrile into rr car, it then leaks, authorities order evacuation and eventual cleanup nearly 1mil. 1 charge- negligent maintenance, other charge, this transportation of chemical is abnormally dangerous activity and Cyanamid is strictly liable.
TC sez; yah strictly liable, grants summary judgment for pl.
This is a question of law, we don’t care what the dist ct thinks.
See 6 factors.
a) risk of harm is great
b) harm that would ensue if the risk materialised could be great
c) cannot be prevented through the exercise of due care
d) not a matter of common usage
e) inappropriate to the place in which it took place; risk of harm could be reduced by shifting to another location
f) value to the community does not outweigh the risks.
If the hazards of an activity can be avoided through due care, no strict liability, we use negligence.
most of the strict liability cases involve dynamite/blasting in residential/urban areas.
Who has control over chemical is important, Cyanamid leased and filled car that leaked. Shipper participated actively in transportation, you suck, pl’s lawyer!
No reason to believe negligence doesn’t work here. It’s not some kind of crazy destructive chemical. Accident here clearly caused by negligence.
It more or less has to go through Chicago, if we want it NOT to go through Chicago, carrier coulda made that decision.
Here it isn’t the actors in the case but the manufacturer pl is trying to hold strictly liable, and that’s crap.
Ultrahazardousness should be limited to activities not substances.
Judgment for def, remanded on negligence issue.
Other ultrahazardous activities? (sometimes)
transportation & storage of toxic chemicals and inflammable liquids
pile driving, crop dusting, fumigation w/toxic gases, testing of rockets, fireworks displays, operation of hazardous waste disposal sites, operation of oil wells, and storage of large quantities of water and other liquids.

Limitations on Strict Liability

Foster v. Preston Mill Co, Sup Ct WA ‘54
Blasting operations conducted by Mill co frightened mother mink and caused mink to kill kittens.
judgment for pl for ~~ 2k, after def received notice of the effect of blasting on mink, absolutely liable for all the damages after.
Is it sustainable on the theory of absolute liability?
There is strict liability in blasting whether it’s caused by trespassory/non trespassory invasions. But strict liability should be confined to consequences which lie within the extraordinary risk whose existence calls for such responsibility.

Is the risk that any unusual vibration or noise may cause wild animals (?) which are being raised for commercial purposes, to kill their young, one of the things which make the activity of blasting ultrahazardous?

No. What makes blasting ultrahazardous is the danger of flying debris or vibrations of the earth or concussions of the air. Mink are nervous. (there still has to be proximate cause.) Pls may only recover for the type of harm that makes the activity abnormally dangerous.

What was the risk that made it abnormally dangerous, and was that the kind of harm that the pl suffered?

See Note 5, p 712. Dog trotting peacefully runs into pl and knocks him down. Shouldn't be strictly liable b/c danger caused by keeping vicious dog is that he attacked someone. Proximate cause is not satisfied. Can pl still recover from defendant? Remember our normal rule about animals, dog shoulda been on leash, def could still be liable for negligence.

Golden V. Amory Sup Ct MA '52

Defs owned hydroelectric plant, there was a hurricane '38, caused flood, and we have two counts, No permit for construction maintenance and operation, second count, negligence in maintenance of the dike.
Here we have an act of God which created the injury. So defs not liable.
Pl's argument was - they used Rylands rule, it was extremely hazardous and likely to cause mischief, Whole pile of water. Same facts too. What could you call the hurricane? Superseding cause. No proximate cause. Hurricane caused this, defs had no reason to anticipate. Def will not be held strictly liable.

Not all jDs would agree, Restatement would allow recovery even if this act intervened. Not a usual incident of the ordinary life of the community. If risk ripens into harm, then still can be liable if you have unintentional act by third person, but intentional act may destroy proximate cause. If it's unintentional and unforeseeable or if it's intentional, may turn into superseding cause in some jDs.
This was a particularly unusual hurricane.

Proximate cause- did we compare proximate cause for intentional torts w/proximate cause for negligence?

Proximate cause is on a continuum. Act in question. Maybe it's an intentional tort, maybe an act of negligence, and then there's a chain of but-for consequences arising from that act. A ton of different things where Cause in Fact could be satisfied. Proximate cause draws a line, sure these things are but-for results but we'll limit liability. Generally proximate cause line is drawn further down spectrum if it's an intentional tort than for negligence. Consequences of an intentional tort are broader than for negligence. If you have a battery- intentional tort- we'll hold you liable for more. Where does strict liability fit in? should be much narrower than for negligence, to satisfy properly our negligence requirements. if someone isn't at fault, then we shouldn't hold her liable for broad range of consequences.

Sandy v. Bushey, Sup ct ME '25
What was the issue, Pl turned out horses in field - so did def, pl went to feed the horses, and was kicked by def's horse, Def's horse had nasty temper and Pl knew or shoulda known, so was somewhat contributorily negligent.
Whether def's contributory negligence operated as a defense to strict liability? Does this bar you from recovery?
For pl's conduct to be a defense, we have to show that injury was not due to animal, but -

This is like implied assumption of the risk. Knowing of the risk and voluntarily taking it on. Voluntary assumption (A) of a known risk (b)

Contributory negligence is not a defense to strict liability. Why should a def who was negligent be able to recover, but some def who was not negligent, collect 0.

Why should def who was at fault have access to a defense that def who wasn't at fault doesn't get?

B/c activity for which we have strict liability is abnormally dangerous and people behave negligently, so this activity that is abnormally dangerous, it is foreseeable that people are negligent and so will be hurt. Strict liability places harm for everyone strict liability something.

Foreseeable that negligence by 3rd party will unleash the unusual danger.

Cts have been less sympathetic to pls who expose themselves to activity that is abnormally dangerous.

If a person w/full knowledge of the evil propensities of an animal, excites the animal, he can't recover, it wasn't the keeping which caused the injury- it was the poking it up.

Some jDs think voluntary assumption of risk should be treated under comparative fault, some think it should just reduce the recovery.

jDs- implied assumption of risk, some it's a complete bar, can be true even if comparative negligence isn't a complete bar. Some of them do it as comparative fault and do percentages.

O two things, I had that thing with Bob Barr, and- y'all, the last time I saw Bob Barr- it was not my finest moment because I had had 2 or three martinis? Very strong martinis? and then I had to pee in the middle of the speech and he was standing between me and the hallway door so that was- not good- I had to get up and dash out in the middle. Not so good, and then the thing that happened bad this time was- I PUT MY FOOT ON THE FOOT OF THE CHAP SITTING NEXT TO ME, AND I didn't notice and wiggled my foot a little- I thought it was the table leg! AAAAAGGHHH! Y'all, now everyone will think I'm Larry Craig. Wide Stance NO! I did NOT mean to do that! I'm so embarrassed now, and I said I had no sense of shame, but apparently: I was wrong.

Defenses for Armageddon, implied assumption of the risk. Two elements, voluntary assumption of known risk. Write out the rules. Argue both parts. Armageddon, Connie voluntarily assumed known risk. She musta known, NOT SHE SHOULDA KNOWN, WE NEED ACTUAL KNOWLEDGE, running around in woods would create tripping hazards. Sprained knee is a small risk. aND THERE WAS A WARNING, SHE KNEW THE RISK OF OBSTACLES ON THE PAINTBALL FIELD, WILD FIELD. For Connie, sure you assume risk of getting bruises but sprained knee not so much, she didn't assume the risk of falling into a hidden trench. Sure she knew there were trees but she didn't know about this trench. State that implied assumption of risk is not a complete defense in some comparative fault jDs. That's it, we don't want to talk about primary/secondary strict/qualified,
Contributory negligence is other defense, in some jDs it's a complete defense, in those jDs applies even if pl only slightly negligent. In arguing this argue whether pl breached duty of reasonable care. Armageddon, she breached duty of reasonable care, Wasn't looking where she was going, wasn't looking at the hazards at the foot level, so that's breach, Foreseeable not looking where she's going, she'll fall, that's proximate cause. What's the causation in fact argument? But for the fact that she was running as fast as possible w/o looking where she was going she wouldna fallen into a pit, only visible from a distance.
Representing Connie, not contributory negligent, she had to wear goggles, against causation in fact- if she still wouldna seen the trench, then no causation in fact, in war simulation game, one doesn't breach the duty of care by running really fast. Not unreasonable. Statement of field being wild doesn't give notice of hidden trench.
Doctrine of last clear chance, does that help? No, it would hurt her< she had the last clear chance to avoid it? But he had last clear chance to warn her so she could avoid it.

comparative fault, most jDs treat contributory negligence under rubric of comparative fault to reduce damages, explain types, pure type and two modified types, argue about relative culpability and causative potency. give some arguments for each. Both parties have to have breached and both parties negligence has to be a cause in fact of the parties injuries. We want to argue other person was more negligent.

What did I eat yesterday? Coffee, Some chocolate, One leftover checkers burger and some sort of sour candy. What did I eat today? Coffee, a pear, an orange, two slices of pizza, and a greek pepper.

Where is that car? I haven't heard anything about it being picked up yet.

DON'T MAKE UP FACTS. If it sez, it's not visible from a distance, it is visible from close by. Keep applying B < P X L

Honestly, I think part of the reason I haven't gotten sick is I'm not running the heat- at least at night, and of course Trey doesn't smoke in the house anymore.

Extent to which an activity is not a matter of common usage- does the mass of mankind do this.

Review three cases on limitations on strict liability, and p 718-732

Ooh, my head is- about to split in two. I think every time I eat Moe's I get urpy, I feel dizzy and my head hurts and I'm vaguely nauseous Class on 20 March and 27 March will happen at 1, NOT 1;15 to accommodate RWA.

Strict liability, see that case in England, if def brings something unnatural onto land that is likely to cause harm if it escapes, you are strictly liable for injuries caused by that thing. Reflected in 2nd restatement of torts, one who carries on abnormally dangerous activity is strictly liable, see 6 factors, Most important factor is inability to eliminate risk due to reasonable care.

We're missing some folks.

when hazards can be eliminated/reduced by reasonable care, then we don't need strict liability.

Products Liability
Liability of manufacturer, supplier, or seller of chattels to one with whom he is not in privity of K who suffers physical harm caused by the chattel. May be based on negligence or , more commonly, strict liability in tort. This is a major push behind tort reform, it comes from here or medical malpractice.

MacPherson v. Buick Motor Co, Ny '16
Buick did not make the wheel that crumbled, and negligent construction in the car is inherently dangerous so there's some strict liability. Knowledge of the danger has to be probable.
Eliminated the requirement of privity of K for products liability based on negligence, now it extends beyond immediate purchaser to anyone who might be injured. This was negligence, Buick neglected to inspect properly wheel prior to installation on car.

Almost every claim of product liability contains a negligence claim as well as a strict liability claim. Why? Could be punitive damages- only available in negligence and super negligence. Why is it better to show negligence? strict liability, jury doesn't want to fault maybe, also compensatory damages. Jurors prefer to rule for you once you've shown fault.

action for breach of warranty is hybrid based on tort and contract.

Baxter v. Ford Motor co. Sup Ct WA '32
Pl bought Ford model A from dealer, they were told that windshield was made of safety glass, and it wasn't, and he lost his eye. Ct took case from jury and entered judgment for defs, did the tc err in refusing to admit evidence against Ford concerning sales literature claiming shatterproof glass. It lacked the qualities manufacturer claimed it had. The sales literature should have been included in evidence, Yah there was no privity of K, but appellant had the right to rely upon sales literature. Jury has to determine whether failure of respondent Ford to equip windshield w/safety glass was the proximate cause of appellant's injury. Ford argued that warranty applies only to dealer, there can't be any express/implied warranty without privity of K. Why can't pl bring negligence claim against Ford? In MacPherson Buick was negligent, here Ford wasn't negligent. Apparently not negligent, TriPlex glass was as safe as it got.
Why do we think pl should recover outside of privity of K? Ct looks at precedent and sale of wrongly labeled drugs. It would be unjust if manuf could say products have qualities they don't have, and then consumer couldn't sue.

What is the deal in 2nd appeal? No better shatterproof glass could be made, so we didn't represent. Why does this thing about no better glass was available irrelevant? B/c doesn't matter that Ford doesn't know misrepresentations were false, they should not ~~

Def made an express warranty that was untrue, lack of the truth caused the injury to pl. There's another element in express warranty, we need reliance or we don't have causation in fact, note 3 p 725.

Ford could make the argument that pl could not have relied to his detriment on our representation about shatterproof windshields, b/c no one else has one, and If we don't have shatterproof windshields, then you aren't going to stop driving.

Ford certainly got a benefit by representing that windshields were shatterproof, or at least pl should show that.

Liability based on innocent misrepresentation is pretty strict, we need to show that def made a specific misrepresentation that pl reasonably relied upon, and that misrepresentation is causally related to pl's injury. We don't have to make state of mind claims, we don't know if there is no such thing as shatterproof glass.

O ok, that's what's on the exam, something about chocolate that makes you lose weight, is there reasonable reliance on this claim. User has to have both actually relied on the wty and it had to be quite specific. Trend is to make those elements easier to satisfy. Some states change this from did THIS person rely on the warranty to could a REASONABLE person have relied on wty. for reasonable reliance, it's important that consumer couldn't detect the quality.

For next time, review henningson, then 732-757.

1769 provision is basically UCC. That purple thing that girl is wearing looks like a towel. Well, it does.


Greenman v. Yuba Power products, Inc.
Sup Ct CA '63
Pl brings action against manufacturer of Shopsmith, and turned piece of wood which flew out, struck him on forehead, caused serious injuries.
10 and a half months later, he claims breach of warranties and negligence.

TC, no negligence and breach of express warranty by retailer, and manufacturer not liable for implied warranty, only Breach of implied warranty against retailer and negligence and breach of express warranties against manuf.
Verdict for retailer against pl, pl against manuf for 65K.
Pl had evidence that machine was defectively designed and constructed. Jury coulda found negligence in construction and statements were untrue, constituted express warranties, and were breached.
Manuf sez; you waited too long, claims barred, We don't know whether claim against it was based on negligence or warranty or both.
statute just sez reasonable time for warranty claim
We don't care about uniform sales act requirements, b/c doesn't have anything to do with tort, that's K. See bottom of 734.

Liability is no longer based on K.

Ct concludes that even if pl did not give timely notice of breach of warranty to the manuf, not barred.
We have strict liability to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves, warranties are insufficient.

We extend strict liability all over the place.

We don't care who sold what to whom and from whence came the warranties or whatever, all we care about is
To establish the manufacturer's liability, it was sufficient that pl proved he was injured while using [product] in a way it was intended to be used as a result of a defect in design and manufacture of which pl was not aware that made [product] unsafe for its intended use.

What else does she teach?

He still was looking for a safer way to drive. (now what on earth did I mean by this)

2nd Restatement of Torts adopted this holding, she's talking a lot about this so write it down.
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,
if seller is engaged in the business of selling such a product
And it is epxected to and does reach the user or consumer without substantial change in the condition in which it is sold,
this rule applies although
Seller has exercised all prossible care in the preparation and sale of his product and
The user or consumer has not bought the product from or entered into any contractual relation with the seller.

Strict liability doesn't mean absolute liability, there has to be a defect. What's a defect? three types. 1) manufacturing defect -flaw in the product not in the general product line. Bottle of Coke containing mouse.
2nd defect is - design defect. Powermaster for example. Fiero, Pinto, (that she mentioned) 3rd defect is defect in warning, Fiero again, it always ran a quart low. Newer 3rd restatement which contains new definitions, somewhat controversial. Some people like 2nd restatement, some people like third restatement. Cts accepted 2nd restatement in huge #s we don't know about 3rd restatement yet.

What does defective product mean? Here the buzzword is defect. What kind of case do we have? Manufacturing defect,

Negligence was lack of reasonable care
Implied warranties
Hennignson v. Bloomfield Motors, Sup Ct NJ '60

Why did ct have to adopt new rule for this case? Why couldn' we just use MacPherson v. Buick? B/c Is it that they can't negligence on the part of def. Yes, I was right. Not sufficient evidence that defs negligently made the car. Pl, def's were negligent- this doesn't normally happen, res ipsa argument. This is the kind of accident that doesn't happen in the absence of negligence, but maybe instrumentality wasn't in exclusive control of def. Maybe driver was negligent.

Why doesn't rule of Baxter v. Ford? B/c we have fine print exclusion. No express warranty- that pl relied on. We have expressly limited wty. Ct relies on what theory of liability? Breach of implied warranty of merchantability, see p 727. Car w/steering that doesn't work is not suitable for purpose for which it was sold. We like the rule dismissing privity of K because there are many instances in which purchaser, like baby food, is not the ultimate consumer, fruitcake, pet food, etc, and they could put crap-in-a-can and sell it. See very last paragraph at bottom of 728.
Ct looks at express warranty and manufacturer's attempts to limit warranty, and then gives no weight to it, gross inequality of bargaining power. Wty worthless. Unilateral act of manufacturer, inimical to public good.

Deana was busy crocheting a Cat blanket. I want a blanket for my minks! And then they can look at Girth with their dead glassy eyes.

She was not happy with that student.

Pl was badly injured when driving a '55 Plymouth, car drove itself into wall (OMG, it's the emo, suicidal car) Warranty clause - implied warranty of merchantability, which sez,the thing sold is reasonably fit for the general purpose for which it is manufactured and sold. Other warranty is that buyer makes known to the seller the particular purpose for which the article is required and he has relied on the seller's skill or judgement, that's an implied warranty of fitness for a particular purpose. Privity of contract shouldn't be required b/c layman doesn't understand the intricacies of purchasing a car, Warranty is standard adhesion K, consumer is in grossly unequal bargaining position, we think that Chrysler cannot attempt to disclaim implied warranty of merchantability.

Section 402A, covers strict liability, p 736.
Should breach of implied warranty still survive as a separate cause of action?

Manufacturing Defect
Rix v. General Motors Co.
Sup Ct. MT '86
Rix was injuured when hit from behind by GMC truck with water tank.

Manufacturing defect, is when not constructed correctly by manufacturer, see p 742. Defectively manufactured product does not conform in some significant aspec tto the intended design, nor does it conform to the great majority of products manufactured in accordance with that design.

See elements of strict liability and elements on p 741.

First GMC manufactured and sold a product which was defective, unreasonably dangerous to the consumer or user

Second, product was expected to and did reach the ultimate consumer w/o substantial change in the condition it was in the time it was sold.

Third, defective condition proximately caused injury to the plaintiff.

Was it different from others in the product line? Definition, Defective product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design. if that defect caused injury to pl, def is liable.
Why? We like to spread costs, if two innocent parties, we like to put fault on pl. Manuf is deterred from producing faulty products, manuf can better bear the costs.
It might be impossible to figure out where def's negligence was. Strict liability relieves pl of this problem.

Reverse and remand (original decision was for GMC)

Why do we have manufacturing and design defect? Tampering alleged by GMC. Def claimed tube altered after it had left assembly line. Pl's claim of design defect, shoulda had dual braking system. That woulda avoided it even if brake tube was defective, pl has back up theory!
GMC has to show substantial RELEVANT change to get round this.

Proximate cause is a jury issue. How do you instruct jury on proximate cause? Each side has proposed jury instructions, if def, find incomprehensible jury instructions,

Under strict liability, pls may only recover for the type of harm that makes the activity abnormally dangerous. Not liable for acts of third persons, acts of nature, etc, in many cases. Implied assumption of risk is a defense, contributory negligence is not. These limitations only apply to the strict liability theories we learnt thus far, animals, Rylands, abnormally dangerous activities.

Now totally different rules apply for products liability, one theory is negligence, such as in Macpherson v. Buick, privity of K eliminated, duty of care of manufacturer extends beyond immediate purchaser.
Express wty/innocent misrepresentation, def just needs to prove that misrepresentation made, pl relied on it to his detriment. Def doesn't have to know misrepresentation was false.

We lost another classmate.

Prentis v. Yale Mfg, Sup Ct MI '84

1970 Prentis injured while using Yale forklift. he fell off, machine did not hit or run over him, but continued despite deadman control. There was no seat/platform for operator.
Why pl alleges design defect? none of them had a seat. All of them designed in a defective manner. What does it mean for a product to have a design defect? This is a hard question, there is no easy thing to evaluate product against, ct has to come up w/standard.

Ct has 4 tests it can use? Risk-utility analysis, that's not what the ct uses.

Ct uses negligence test. How do we know this, they had to prove fault, MUPLA, model uniform product liability act, 746 Did def negligently design product according to jury instructions, man of product made under plan or design- eh, see 748. Design defects are hideously expensive to cure. A forklift without a seat is defective in design. Forklifts are jerky apparently. Maybe you are more careful with the forklift if you are standing up.

so if products are recalled, is that manufacturing, design, or warning defects or all three? Probably design defect?
Able to eliminate risk by reasonable care is argument only relevant for abnormally dangerous liability. Doesn't make any sense for this kind.

That girl has some kind of lengthy complicated question which I cannot hear. Defense based on misuse of product is available.

I am reading about this Spitzer thing. The ho in the case got paid ! $4,300 and all expenses? I want a picture. What ho is worth that much? O apparently it was cash in advance. That K will certainly be unenforceable, let's see if we can get Girth to talk about it tomorrow.

Now the question is, do I hold myself up as a paragon of moral rectitude? I am not sure. Because on the one hand, I do certain things that perhaps are iffy- well, in terms of being bad ideas, but morally I am not doubtful, because I am completely honest about them to the point of writing about them on my blog, I haven't gone and prosecuted hos while patronising them at the same time.

I have to think about where I stand on this given my generally laissez-faire views. But I do expect better of someone who stands up and wags their finger at other people. Mr Covaci I do not expect anything of beyond he lays tile excellently, if he is going to take my $ and spend it on what he said he was going to- then that is decidedly not a problem for me. But I think if you set yourself up as a public figure then we have the right to expect more, and personal sleaze is certainly an indicator of public sleaze.

Ooh, perhaps we can get Emmanuel to talk about this, she mentioned the Mann act a couple of classes ago and here we have a prominent example of it.

Review O'brien, it's very important, 757-764.

Two moments of Zen for y'all-

What is left of a story after you are done telling it?

You are turning into the diva I have always wanted to eat.

O'Brien v. Muskin Co. Sup Ct NJ '83

Pl O'brien wants strict liability applied to above ground swimming pool which was defectively designed and bore inadequate warning. O'brien injured seriously after diving into pool, which bore tiny warning label Do Not Dive, he came uninvited to home and dove in, Slippery and inadequate warnings. Pool made of vinyl, not latex. Expert sez, vinyl very slippery but there's some confusion about can latex be used to line above-ground pools.
Co. expert sez; vinyl is too the best, slipperiness can ge a good thing. But could be more deeply embossed to make it less slippery.
Is this a design or manufacturing defect? Apparently ct decided it was a design defect.
Strict liability: does not have to prove manuf's negligence.
Pl must prove,

1)product defective,

2) defect existed when product left the hands of the def,

3) defect caused injury to a reasonably foreseeable user

Note, it is not sufficient to show that product caused injury, that is absolute liability, we need to show defect in product for strict liability.

Duty of manuf to foreseeable users: warn foreseeable users of risks inherent in the use of that product and not placing defective products on the market. If breached, strictly liable to an injured party (so wait, don't we have duty + breach + causation + damages = negligence? I guess they don't have to prove it? They seem to have to prove something)

What's a defect? Manuf defect: not like the other ones.

Design defect, including absence of warnings, = some products are so dangerous that they create a risk of harm outweighing their usefulness. Can we think about this in terms of B < P X L? Mais certainement!
What standards can we use?

Risk Utility Analysis is one. Compare utility of product with the risk of injury it poses to the public. Appropriate when product may function satisfactorily under one set of circumstances, but because of design present undue risk of injury to the user in another situation. (like- what? Lawnmower w/o deadman control?)

Alternate standard: Consumer Expectations test. The failure of the product to perform safely may be viewed as a violation of the reasonable expectations of the consumer; but pool fulfilled its function as a place to swim, just failed when you dive into it. (Ct seems to choose this test)

Factors relevant in risk-utility analysis

1) Usefulness and desirability of the product, utility to the user and public as a whole

2) the safety aspects of the product, the likelihood that it will cause injury and the probable seriousness of the injury

3) the availability of a substitute product which would meet the same need and not be as unsafe

4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it to expensive to maintain its utility

5) the user's ability to avoid danger by the exercise of care in the use of the product

6) the user's 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

7) the feasibility on the part of the manufacturer of spreading the loss by setting the price of the product or carrying liability insurance.

We also need to look at "state of the art" at the time of product manuf. Customs of the industry / = state of the art, state of the art is existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. (Stated: if it's out there, you have an obligation to improve product to what may be available in advance of everyone else)

Burden on def to prove compliance with state-of-the-art plus risk utility analysis, ultimate burden of proof of defect on pl.

Now we're talking at length about guns. Remember that New Year's party where Brandon had his gun and stuck it in his waistband "to be prepared." Prepared against what, I wanted to know, because if there were to be some eventuality that involves the need for the gun, I could have gone home right then. Y'all know I am so not a hero, when I see people grouped round and some sort of emergency, I immediately go in the opposite direction. I don't know what sort of eventuality was supposed to happen, perhaps he thought Chauncey and Trey and i were going to gang up on him, I suppose but all of us are quiet, non-violent types. Ooh, perhaps it would be fun to have a gun and go and shoot things, but I do not want to go visit Crazy Pam and Crazy Bob any more. Is she talking this much about guns because it's going to be on the final?
Also I'll wager I would get all enthusiastic with it and shoot all the squirrels. Could I make myself a squirrel coat? How would I do that? Could I can the squirrels? Canned squirrel might be nasty, imagine if I gave that to people, that would be so Southern. Have a can of sqwerl. is it legal to shoot the sqwerls? There's some kind of long tedious hypothetical that everyone is losing interest in.

She has the guns and food folders for products liability, food why? because it makes you fat. It woulda been funny if her folders had been Guns N' Roses. Do I have their CDs.

Note 5, P 755, yes, I took notes about this so. Most jDs say state of the art if all safety devices that were practically and economically feasible to incorporate when product was made. In MT, coulda still been product defect if unknown and unknowable.

Most jDs think obviousness of danger is one factor to be looked at but not complete defense.

Hee, I had to wash that man right outta my hair.
Today I have seen two winning outfits. This one is really nice and the rose coloured thing Girth had was quite nice.


Product can be state of the art and still fail risk utility analysis.

Was design defective? Jury shoulda considered it because of dimensions of pool and slipperiness. Risk coulda outweighed utility even with state of the art analysis.

Risk utility factors- this is recreational, not therapeutic, so lower utility, greater risk b/c of vinyl liner and inadequate warning. Warnings could easily be made more prominent and liner less dangerous. (y'all know how Mattingly would phrase this, B < P X L and that's all you need to know about torts)

Let Pl prove case.

Some jDs use risk utility, some use consumer expectations.

Open and obvious/ patent danger can be defense to design defect, knives, cigarette lighter,

See standard for strict liability for prescription drugs (do you know, I can already hear her talking about this note and visualise the hand gestures? Professor, I am so paying attention in your class, I have internalised your voice. I have to turn I know what she's going to talk about into I know how to write about it on the exam) There is no strict liability for design of prescription drugs she sez, why do you think that is. Yeeaaaah, she sez, but the courts have another reason. Because the utility outweighs the risk and the risk is known and reasonable.

Liability for harm caused by defective drugs only if "foreseeable risks of harm caused by drug/medical device are sufficiently great in relation tot the benefits that reasonable health care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients" Ok, reality check, don't we have the FDA and what market is there for a drug no one will prescribe?

Can we apply strict liability to vendors of food? "Courts struggle" meaning who knows.
Some times strict liability only if there's a foreign object in the food. (foreign= completely unexpected object, such as glass but not bone fragment in meat.) If it's natural, pl must prove negligence.

Another tack: Whether it's natural or foreign, strict liability lies if consumer wouldna reasonably expected to find substance in the product.

Allergic reaction generally handled as failure to warn.

Warnings Defect
Warnings have to accomplish three things, get user's attention, explain what the hazard is, it's flammable, it causes stupidity, shows how to avoid risk. So then I decide to warn about everything under the sun, don't bathe in it, don't feed it to your pets, don't eat it, don't paint your house with it, if you put unreasonable warnings, they won't read any of it.

What about do not taunt happy fun ball? They warned against it, can they avoid liability? Not entirely, no failure to warn defect but they have a product liability design defect. Warnings mean that user is aware of danger. Suppose danger of a product is avoidable, warning can help consumer to use product w/greater safety.

Spose you have all the warnings, someone taunts happy fun ball, and it is found defective in design, how can this help you, well there's some assumption of risk so lower damages to eventual pl.

Later, google the books that make you dumb and go to boing boing so you can watch three hours of MTV from 1983.

Warnings defect.
Anderson v. Owens-Corning Fiberglas, Sup Ct CA '91

Can def in failure to warn suit present evidence of state of art, that is, we didn't know and no one did at the time?

Well, we have failure to warn as alternate and independent basis and knowledge is a component of strict liability. if knowledge is a component, then state of the art evidence is relevant and admissible.

CA cts have requited knowledge of risk or danger before failure to warn.

Pl sick b/c of asbestos. Argues that to impose requirement of knowledge turns this into negligence.

Failure to warn means: def didn't warn of particular known risk or knowable for state of the art.

Under negligence, reasonably prudent manuf could decide not to warn if manuf's testing showed result contrary to state of the art,
Under strict liability, nuh uh, can't decide not to warn.

Of course they can present knowledge inf. relating to state of the art!

Strict Liability: if manuf failed to give warning of dangers that were known to the scientific community at the time it manufactured or distributed the product.

user has to be given option to avoid or to reduce use of product. if manuf acted as reasonably prudent manuf in deciding not to warn, may absolve manuf under negligence byt won't preclude liability under strict liability if trier of fact concludes that based on info scientfically available to the manuf, the manuf's failure to warn rendered the product unsafe.

She said that knowledge or knowability of risk that caused the injury to the pl has to be shown to get strict liability.

Let's say that jury finds that thing that injured pl was not known or knowable, does pl get off scot-free? No, because if they found out, they have a duty to recall and provide post-sale warnings.
Read all notes very carefully after Anderson, they discuss obvious dangers, normally no duty to warn of these things, or risks that are generally known. How did pl in McDo case win? Probably a design defect, 170 degrees, outside the norm of what fast food restaurants serve. Maybe a warning defect. Really more about design. Consumer expectations rule- people expect coffee to be hot- but see, sez pl, not that hot.

She has a car without a cupholder! I did not know anyone else did! Risks of having the coffee at that temperature outweighs the benefit, high probability of magnitude of injury. see the factors.

For next time, freedman, 769-787.
No duty to warn of obvious dangers or generally known risks.

Should manuf of perfume warn that it can explode?

Learned intermediary rule, in many cases, manuf- ships product, like prescription drugs to a learned intermediary who then decides what warnings to pass to patient.
(Manuf not responsible for passing warning on to consumer)

Some jDs don't apply learned intermediary rule if manuf is aware no medical provider to provide learned advice or if patient is expected to take an active role in the selection of the product, such as, oral contraceptives,

Also if product is marketed directly to consumers, Viagra, etc, then no learned intermediary rule.

What about products used in workplace, sure, in many cases.

Pl entitled to presumption that user woulda read and heeded adequate warning. Spose pl hadn't, can we show pl didn't heed other warnings?


Ooh, are we movie? I would not mind that at all. No, it's just powerpoint. Dude knocked off someone else's laptop, I hope it is still working. There are only 6 slides.

Y'all I promised Deana I wouldn't comment any more on professors' outfits so I shan't. But Deana isn't here. Oh yes she is.

Last class, we discussed products liability theories of recovery
Implied warranty of merchantability
Henningson, above warranty not limited to those in privity of K w/manufacturer.
Manuf cannot exclude recovery for personal injury through disclaimer.
Strict products liability, Made sense as policy matter to impose strict liability to manuf. (which case?) Manuf can spread costs.

New 3rd restatement, key question is is product defective? Is it a manuf defect, design defect, or failure to warn defect? To recover on strict liability, Pl has to prove,
def made and sold a product that was at time def made or sold in def condition
2) product was expected to and did reach ultimate consumer w/o change from when sold
3) defective condition in product proximately caused injury to pl.

Defect, manuf defect, if not constructed correctly by manuf, different from others in line and different from how manuf intended. Manuf liable when imperfection causes injury, no matter how careful in quality control
Design defect, when designed in such a way as to be not sufficiently safe. How do we decide? Prentiss, negligence standard applied rather than strict liability. Conduct of manuf in designing product, was there reasonable care in designing product in light of any foreseeable use of the product.

What effect does O'Brien decision have on ability to purchase above ground pool? Very very negative effect, because there doesn't seem to be a way to make it safe. Reasonable jury could find that it was defective in design, and there isn't another way to make it safer. What test does this ct use? Risk utility analysis. Negligence analysis very much in minority. Yes, she listed the 7 factors. negligence analysis focuses on manuf's conduct in designing, risk utility is very similar to negligence analysis. Most cts would not allow this. Ct seems to be ignoring a whole bunch of these factors, they didn't seem to think this was useful product, it's more of a luxury, very unsafe, didn't look at 5, alternative not looked at. Ct sez, pl doesn't have to prove existence of alternatives. Legislature overturned result, if other jDs had followed, wouldn't be very many above-ground pools.

What are other ways besides litigation? Gov't regulations, such as CPSC, Free market?
Note 3, this decision was unusual. Pl has to prove alternative feasible design to prove design defect. Restatement quoted on 739, generally takes this view.

There's a long discussion of lawn darts, unsurprisingly. I really like class after RWA hell. Why is the javelin still with us and lawn dart only a treasured memory. We looked at all the factors.

What's the relationship btw design defect liability and failure to warn? Review notes after O'Brien case, so she may get to it, Anderson case, 765-769!
Failure to warn,

3/13

Proof, Friedman v. GM.
Sup Ct OH '75
Unintended acceleration, turned key while in drive, it started and leapt forward. TC said pl had not proven it was defective. App ct reversed. GM appeals.
Is the evidence introduced by pl sufficient to overcome directed verdict.

Pls have to prove that toronado man and sold by def was defective, defect existed at the time product left factory, and defect direct and proximate cause of accident and injuries.
Pl's evidence did establish defect. Linkages and adjustments were as they were at factory, car had always been started in park, giving no notice of alleged defect.

Next weeks, thurs classes are at 1.

Last class, strict products liability and design defects, O'Brien, majority approach, risk utility test. 7 factors are relevant. Minority rule, consumer expectations test, and cts can add this, did safety of the product conform to the reasonable expectations of the reasonable consumer. Some cts like this, it's consumer friendly, but it's not much of a test, consumers may expect all products to be super safe. Could be too narrow, could foreclose liability for products which are unnaturally dangerous, and consumers expect this, like non-child safe lighter.

Many suits against gun manufacturers, the manufacturers negligently manufactured and distributed guns, but some are product liability claims.
Should we allow these claims to go to jury either under risk-utility or consumer expectations.

Toronado's neutral switch had to be in neutral or park position to start, it's entirely possible that transmission is in drive and neutral start switch be in Neutral or park.

Jury coulda found this, so enough evidence.

Dissent, res ipsa rears its head here, we don't know what happened but it coulda happened.

Ahh, that's what factors v. elements means, elements are conjunctive and factors are that balancing thing- sliding scale, these are all things we can consider.

Adkins is arguing with her about something.
769-787
3/18
Defenses
Pl’s conduct

Daly v. GM CA sup ct ‘78
Driver of Opel (now, what kind of Opel is it, it could be the Chevette, Opel by Isuzu crap or a Kadett or a Manta) thrown from car and DIED b/c of allegedly defective door latch. There was evidence that driver didn’t use seat belt, lock door, and was drunk. Jury found for GM.
Do principles of comparative negligence apply to actions founded on strict products liability? Yes.
Manuf not deemed responsible when injury results from unforeseeable use of product.
Most forms of contributory negligence do not constitute a defense to strict products liability, but pl’s negligence is a complete defense when it comprises assumption of risk.
Remember: Contributory negligence= no recovery for pl, comparative negligence, some recovery. But we want to blend contributory negligence, comparative negligence, assumption of risk and strict liability.
Why do we have strict liability? so that: 1) consumers don’t face the problems of proof in pursuing negligence and warranty remedies, and also 2) to redress the problems that consumers who are powerless to protect themselves face.
But adding comparative principles just makes sense, we only lessen pl’s award in the amount that pl was negligent, and manuf still held liable.
judgment reversed. (why doesn’t it say remanded?)

strict liability, no one's fault should be considered, but we do want to consider pl's fault here. He coulda protected himself. Would this create less of a deterrence for manufacturers? No, manufs will still want to make them less safe, because not everyone will have been negligent, and manuf might still have to pay.
Voluntary assumption of a known risk might reduce or completely bar pl's recovery.

Contributory negligence, pl breached the duty of reasonable care, was a cause in fact and proximate cause of the pl's injury, so that becomes comparative fault.

Other deal is implied assumption of risk, pl had to have voluntarily encountered a known risk. Known not to the reasonable person, but known to the pl- completely subjective. Also can end up as comparative fault.
Ha, who's been practicing their Calligraphy in French?

Strict liability design defect under risk utility test, jury has to consider def's product which failed risk-utility test and compare w/ pl's voluntary assumption of a known risk.

Bob bites into a snickers bar and lo and behold! now we're talking about worms, everyone's talking about worms now. Note: I wrote about tapeworms before we discussed this. So this would be a manufacturing defect, not a warning defect. Claims that you were negligent by failing to expect the candy bar before eating it. Didn't Ed once eat some cookies which had worms in it? And Alex got that egg in Wurms which turned out to have maggots in it.
They claim you breached the duty of reasonable care by not inspecting it before eating it. It's not really reasonable for reasonable prudent person to inspect it before eating. Yah ok, but the comparative fault was so small that it shouldn't reduce his damages. See Note 2 P 774, pl's negligence in failing to discover defect may not be defense at all & should nto reduce pl's recovery under comparative fault.


Most jDs have added comparative negligence to strict liability, but a few haven’t.

Ford Motor v. Matthews, Sup Ct MS ’74, displaced person.
Matthews was killed after being run over by his tractor and dragged under discs. (OW OW OW OW) He was standing beside it started it while in gear, and it had a safety switch designed to prevent the tractor from being started in gear, pl alleges this was defective, and TC found for pl.
Ford alleges standing next to tractor and starting it in gear was a misuse and an absolute limitation on Ford’s liability. Ah, sez ct, but that is only for products with no defect. Foreseeable misuse is not a bar to recovery. Affirmed. Only unforeseeable misuse of a product bars strict liability.

Since misuse was foreseeable, does that mean it was irrelevant at trial? i don't think so, couldn't we use comparative negligence to show that they pay less? Yes.

Misuse can be used to make a whole bunch of different defense arguments, ex, can argue, no defect as a result of misuse. If the unforeseeable misuse is the sole cause of the harm, then we don't know if it's defective or not. could also say that Misuse makes it a superseding cause and defect in product is no longer a proximate cause of the injury, also can say misuse is a complete defense to defect.

See Note 4, P 776. How do we argue that this is not unforeseeable misuse as a matter of law< can't we argue not the manner necessarily but the harm was foreseeable? Doesn't have to be this particular appendage, coulda been a finger or something.

Unforeseeable misuse is a complete defense as a matter of law.

Getting a case in front of a jury is good for pls. But sometimes better to leave to judge, that's the exception.

Preemption and other gov’t actions
Medtronic v. Lohr, sup ct US ‘96
Lohr had pacemaker which failed, she had emergency surgery, apparently there was a defect in the lead and they sued alleging negligence- duty to use reasonable care in the design, manufacture, assembly, and sale of the subject pacemaker including use of defective materials and failure to warn of tendency of this pacemaker to fail despite knowledge of other failures.
Strict liability part said, device was in a defective condition and unreasonably dangerous to foreseeable users at the time of sale.
But there’s some federal statute dealing with some of these things which may pre-empt the state common law claims.
Anyway, there’s a long complicated explanation but A) we don’t want to do anything that pre-empts state power and B) we don’t want to do anything which would have the effect of granting immunity to this industry. If Congress has made its intent clear, state law is preempted by fed law.
Constitution contains supremacy clause, we know about that.
Preempted, state regulation preempted in three different circumstances. Congress can specifically do so in a federal statute, express preemption.
Congress can do it by writing law that conflicts with state law, conflict preemption.
Federal statutes occupying a field comprehensively- if feds have regulated so comprehensively in a particular are, ct may infer Congress must not have meant for states to say anything about it. - field preemption.
Compliance w/ gov't standards doesn't preempt state tort law claims, product could still be defective and manuf could still be liable this is useful but not conclusive evidence. Regulation by fed gov't is only determinative if we have one of these three kinds of preemption.
We just don't have the statute language here. FDA has to approve med devices intended for human use per amendments, which also provide express preemption which sez, states can't have different standards from fed.
But these medical device amendments also don't provide their own cause of action and then pl can't sue. This ct sez, not preempted by medical device amendments.

Preemption in general, does fed statute preempt state law? Look at purpose of Congress. ct won't find preemption in a field in which states have traditionally occupied, like personal injury law, unless congress specifically said so.

Defs other than principal manufs/harm other than personal injury
Other suppliers of chattels
Peterson v. Lou Bachrodt Chevrolet, Sup ct IL ‘75
children hit and killed by ’65 Chevy with defective brakes. sold 11 june ’71 accident occurred 3 Sept 71
Ok, we know about strict liability:
Pls have to prove that injury/damage caused by defect;
Condition unreasonably dangerous
Condition existed at the time it left manuf’s control.
Strict liability imposed on wholesaler who didn’t touch product, and retailer, b/c retailer has an incentive for safety also. Now def is outside original producing and marketing chain, dude, wtf? ‘cos at least used car dealer had some control over used car and marketed it.
We think imposition of liability on wholesalers/retailers enables them to pressure manufacturer to make safer products (?)
But we don’t think defects existed when product left the control of the manuf, and we don’t think defects were created by used car dealer, and we don’t want the used car dealer to become an insurer against defects which have come into existence after the chain of distribution was completed and while the product was under the control of one or more consumers.
So strict liability does not apply to used car dealer.
Cts often decline to impose strict liability on used dealers, some cts do, and cts are split on whether it can be avoided by selling product as is.
Most cts have extended strict liability to sellers in the chain of distribution. Why? Retailer may be the only way pl can get relief, also reasons supported above. Some jDs limit retailer and wholesaler liability. Retailer can get indemnity from manuf.

See Note 4 P 786, we discussed above. Law protects wholesaler/retailer through indemnity clauses, if retailer is found strictly liable for injuries caused by def product, then can seek damages from manuf. Unless retailer was also negligent.
(?makes it easier for pl to collect?)
Who isn't liable? Sellers of used products. But we can still get them for negligence. Why does it make sense to draw this distinction? If it's used, there's no way it's in the same condition as when it left the manuf. No direct link with manuf. Occasional seller not subj to strict liability.

For next time: 841-857
Services
Hector v. Cedars-Sinai Medical Ctr. Ct app CA ‘86
Pl alleges injury resulting from implantation of a defective pacemaker. Negligence, strict liability, and breach of warranty.
Rule, manuf is strictly liable in tort when an article placed on market, knowing it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Strict liability can be extended to distributors.
Dr treating and diagnosing a patient normally is not selling product or insurance.
Hospital's primary function is to provide med services, Strict liability can be for if there is something outside not integrally related function.

Cedars-Sinai has nothing to do with pacemakers (they're just making this $%^^& up) And they don't test them.
Hospital doesn't choose the pacemaker, We don't want them to increase costs and etc, no strict liability for choosing pacemaker, away with you. Seller is only liable when it is in the business of selling the product, but that is something it uses in providing its services, (shop supplies) but not really a product, you cant walk in and buy whatever it is and take it home and have Mitch install it. funny. Cts won't apply strict liability if its predominantly a service. Spose she also sued the dr and can prove that he routinely installs pacemakers and has an arrangement by which he makes a profit per sale? How would you argue that he should be subject? He is really the retailer? Don't we also have the Learned intermediary argument? But most of the time this argument fails. Mechanic in ordinary circumstances, we don't know.

Should I ask Patchouli boy to go out on Friday or should I ask one of my other guy friends? I want to take someone to the Colonnade Friday.

I could take Don but A) I don't want to encourage him to pass that Friend barrier.
I could take Jical but I am not ready for that, I haven't met him in person yet.
I can ask Patchouli boy, spose he doesn't eat meat? That would be bad.

And she yelled at the people who were late today. & she went in the hall and yelled at someone who was talking loudly.

See note 14 P 764 about presumption that pl woulda read and followed if warning had been given. Why is this a good thing? Pl has to prove causation in fact, if they wouldna read it and followed, then lack of causation.
Notes 11-13, learned intermediary, what happened to my notes?
Ok they're just way up there and somewhat inadequate. I think those meatballs had too much MSG and that and the fact that it's going to rain-

Ooh I am so going to go home and watch "attack of the Killer Shrews." (while getting my oral arguments together?) Do you think I can get enough work done to go see tim? i would like to put my head in his lap. Mmmm. Now what am I going to tell this Marc, because I already have one fat friend, and I don't need another. he wants to go have lunch on Saturday, and I don't., and also because of the whole weirdness factor with him being Don's ex. That is just too much.

Putting a products liability case together, client comes in, standing on a stepladder and it fell. Would I say, there's strict liability and we're going to get him. No, we need a defect in the product. We might want to do a manufacturing defect, what about a design defect. or warning defect?
Spose I think there's a manufacturing defect? Get other samples and compare to see if this one is no good. What would I say first? bring me the ladder & compare with others made in the same line. How would you defend against this? Ladder modified after it got out of def's hands. You could say misuse. Pl injured while engaged in misuse which was unforeseeable, if it was foreseeable, at least it could reduce damages. Spose it is different from others in the product line- ok but that may not be the cause of the injury. Apparent defect could be the result of accident rather than cause of it.

What else? Design defect, hinges are wrong or something. How could you prove? Do a science experiment, compare to others made by other manufacturers, get expert witnesses. Obtain def's blueprints of stepladder, other tests. How would you defend? If not many people have been injured, then it meets expectations of the reasonable consumer, if we use the majority risk utility test, it isn't very dangerous, probability of injury is low. Still say, unforeseeable misuse, maybe someone way over weight limit used it. Reasonable consumer doesn't expect small portable stepladder to support 350 lbs. Liability for design defects much more similar to negligence. Risk of this design outweighed utility, or failed to conform to reasonable expectations of reasonable consumer.

Most cts preclude evidence of redesign in product after accident. See Note 4 P 769

Warning defect: don't step on last step, don't be fat, you'd have to see what warnings were provided.
The last step warning is common knowledge and no duty to warn. But maybe no one pays attention to that warning. Or rebut presumption woulda read and followed adequate warning. Res Ipsa can rear its ugly head again, that kinda malfunction does not happen in the absence of a defect. Malfunction in product enough for inference of defect that caused injury.
Now she's reading a letter from a juror to a judge, which complains that the juror A) hates the plaintiff and B) thinks plaintiff's lawyer looks like the Penguin.

Why does everyone I know keep talking about gastric bypass surgery? Personally, if I were a candidate (like Perla), I would rather eat a tapeworm like Maria Callas. We should be able to patent tapeworms. All natural weight loss, proven for hundreds of years, i think they're really safe, right? albeit somewhat disgusting. Then again, are they really more disgusting than weight loss products that can cause "anal leakage." Eat all you want and still lose weight.

Oohh, there's that assignment for Crim law tomorrow.

Hee hee, NOW IS NOT THE TIME.

Review what was discussed today and read 787-798, end of chapter and then we start defamation 829-841.
Or Timmons SMASH!

Defamation: we are trying to protect people's reputations.
Based on these three cases, what is required for Pl to prove? Def said something which is false- In common law, if you couldn't prove whether it was true, def lost, b/c truth was an affirmative defense for def. Nowadays falsity can be an element of pl's prima fascie case, but not always.

Def has to have affirmative defense of truth. Does it have to be 100% accurate? No, substantially true is enough. Why doesn't def in Kilian avoid liability for substantial truth? Has to be substantial truth about specific allegations, we can't allege he plays games with the cats by showing he likes to dance in a drinking dress. Might character allegations still be relevant? Sure, if he has a bad character, can't really injure his reputation further. What else do we need, words used reasonably capable of being interpreted as being damaging to reputation.

elements: Def made a communication
2) communication must have had a defamatory meaning
now what does that mean? Exposes person to distrust, contempt, etc. Or has tendency to injure such a person in his office etc. Based on the effect communication will have on listeners.

Defamatory: lwoers him in eyes of community/deters third parties from associating/dealing with him. Effect of communication on social ability. TC can dismiss a claim only if the words were not reasonably capable of a defamatory meaning.

Belli, here the article said Florida Bar had been taken, and taken here has a very negative meaning.

Statements made about 5 different people:
A is beautiful: Defamatory? Probably not
B has blue eyes: Defamatory? Probably not
C is of mixed race: Defamatory? Maybe, if not
D is homosexual: Defamatory Maybe, if not
E was raped. Defamatory? Maybe, if not. But we do want people to report this, and don't want to think that this is a bad thing to report, we don't want to punish victims of a crime. We do however want them to be able to recover damages for these false allegations.

Tort of defamation protects your interest in your reputation, just because we think that people should not think less of these people, doesn't make it so. Much of this depends on time, place and culture. Restatement defines community as including any substantial and respectable minority of members of the community, it is not enough if it offends some small really wrong thinking minority that everyone else regards as a good thing, that's for criminals who are called law abiding.

In 2004, MA held homosexual, no longer capable of defamatory meaning. that as defamation seems incompatible with marriage. What else. Decriminalisation. Lawrence v. TX. it isn't a crime anymore.

Grant case tells us that we should prolly view this in terms of how wrong minded people will view this, not whether right thinking/majority people will view this as containing a defamatory meaning.

Le loucheur mir guckte und mir besprechte mit der Ecossais. awww. You can't go that far! O well, happy thoughts, happy thoughts.

Now what am I going to tell Don? Well, I wish I could just tell him almost the truth which is that I really like him as a friend but it would be a terrible mistake for both of us to try to make something happen which is not there, and also, I'm just not ready. After 6 years, I've had roughly 10 weeks away and I'm just- not there yet and ready to start something new, I'm ready to have "fun." I don't even want to THINK about having a bf yet.

Sometimes we need to explain further why some statement is defamatory, like person frequently seen at 555 Cherry Drive, not generally defamatory unless we know there's something wrong with 555 Cherry drive.

What would I need to can collards, mmm that would be good. Garlic, ham hock, I want to hot pack them. Oooh or that cabbage slaw. Suss und saure cabbage. Beets, Details of punctuation or emphasis can make a difference, such as scare quotes, she was "associated" with a slain executive, quotations imply illicit relationship.

Note about intensity of suspicion cast on the pl. if we have a very small group, of 8 or so, then Yes, liable, not for all the torts students.

Review cases for today and 858-882

Damn, I want some of those Colonnade pork chops.

Belli v. Orlando Daily Newspapers, Inc.
U.S. Ct of App, '67
Reporter printed 9 year old gossip which turned out not to be true in column
the publication itself, without reference to extrinsic facts, is capable of carrying a defamatory meaning.

Libel: any false and unprivileged publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy or has tendency to injure the person in his office, occupation, business, or employment.

For publication to be defamatory, must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it.
Defs say article did not hurt belli, nothing more than Caustic comment on Florida Bar. It could be, might not be, but reasonable reader interprets as he's a bad person.
Jury can decide whether pl was lowered in the esteem of those to whom the idea was published.

Older definition of defamation, communication to a third person which tends to hold the pl up to hatred, contempt, or ridicule or to cause him to be shunned or avoided.

Defamation has been broadened to anything which damages pl's reputation, diminish the respect, good will, confidence, or esteem in which he is held, or to excite adverse or unpleasant feelings about him.

Grant v. Reader's Digest Ass'n Ct of App, '45

Article published insinuating that Pl had represented communist party in MA, which was untrue and malicious.

1) what meaning might the jury attribute to the words
2) was this meaning libelous.

is it libelous to write that someone has acted as an agent of the communist party and believes in it.

Libel: utterances which arouse hatred, contempt, scorn, obloquy, or shame, among right-thinking people, for example, filthiest people alive would be libel
AT 1 Thurs.

last class, how to prove strict products liability case, has to be manufactured by def, has to have defect when sold by def, has to something, you know.

Defenses to strict products liability, daley, principles of comparative negligence apply in strict products liability, some cts apply comparative fault and some cts use assumption of risk to completely bar pls' claims. We had stepladder hypo.

Be clear on a few things. Ooo I wonder if Diana is going to be here today, I hope she comes with Marks of Excellence.

If represent pl who is injured by a product, we can sue under Manuf defect, design defect, warning defect, Pl can challenge product's design under two different theories, so we have negligence and strict liability. Under SL for design-> two tests, risk utility and consumer expectations. Strict liability, starts with a defect. Could be in design, manufacture or in warning.

What about negligence? we need breach of duty of care, to use reasonable care in making the product. How might you show this? B < P X L. Manuf acted unreasonably in designing the product, in manuf the product or in warning about the product. Some arguments will be the same, for sL focus on product itself. Pl generally also argues negligence as well as SL. Juries generally like to give $ if manuf was at fault. Remember to focus on breach, not duty. Things like lack of quality control could show negligence.

Yet another theory of product liability theory of recovery. Intentional injury? no. Knew to a substantial certainty? No. OOOH, I was right! Breach of implied warranty/express warranty of merchantability/suitability for a particular purpose.
Express warranty- def expressly made specific representation that the pl relied upon and the breach of that representation is causally related to the injury.

thing sold is reasonably fit for the purpose for which it is manufactured and sold.

Implied warranty of merchantability, what sounds like this? Consumer expectations test. Product is as safe as reasonable consumer would expect it to be. don't apply implied warr of merchantability on the exam, it was a transactional doctrine to move from K to tort. Cts don't use it much today in cases involving personal injury. Don't even mention it, no pts at all.

Y'all as soon as I have my last exam, I am going home and drinking a martini out of a bucket and then sleeping for three days.

Wait y'all, I have a joke that one of my LSAT students told me.

What did the easter egg say to the boiling water?
Give me a minute to get hard, I just got laid by this chick.

Wait a minute! Where is Timmons! Do not Want new and different person without forewarning! Ok here she is. Thurs at 1.

Strict liability, negligence and express warranty, don't discuss implied wty of merchantability, unforeseen misuse bars strict liability, if abnormal or unintended misuse was or shoulda been foreseeable to the def. Preemption by federal law, express preemption, conflict preemption and field preemption, just 'cos they complied with standards does NOT mean that they are free from liability.

Wholesalers/retailers may be liable but not sellers of used products.

Hector, 787, strict liability doesn't apply where sale of product is incidental to the providing of a service. Products liability doesn't apply to services. Must do strict liability abnormally dangerous activities.

See Note 1 P 791, this splains it. No mass production and distribution so no spreading of loss. Don't involve group of consumers needing protection from a remote and unknown manuf.
Kilian v. Doubleday Sup Ct PA ‘51
Jury gave verdict for def, allegedly libelous article.
Disabled veterans of WWII wrote essays or stories about their experiences; Wolfe wanted to publish. O’Connell wrote story, Wolfe suggested changes to make it more vivid. He wrote bad things about Colonel Kilian, and put footnote that Kilian permitted cruel and unusual punishment and convicted as way of corroborating bad things. Military ct actually convicted him of allowing neglect but not actually of having done it. Doubleday said, well, this was true, ct sez, nuh-uh! Writer was never there, def produces witnesses but they donh’t really corroborate the story O’Connell wrote and is not admissible. They just showed def’s bad character; not enough to show that specific incidents O’Connell alleged were true.
To disprove libel, have to show specific events are true.
Neiman-Marcus v. Lait SDNY ‘52
Lait has written a book called USA confidential alleging that Neiman-Marcus has some models who are call girls. Salesgirls are cheaper call girls, NY models are expensive, all the men there are fairies.
When the group or class libelled is large, none can sue even though the language used is inclusive
When the group/class libelled is small, and each and every member of the group or class is referred to, then any individual member can sue.
Our problem is that this libels some or less than all of a designated small group, some cts deny cause of action to any individual, other cts allow.
Salesmen have a cause of action.
Saleswomen is very large as compared with salesmen, there are 382 v. only 25 salesmen. Nothing points to any one person, and defamation of the class does not affect individual of the class. No good for saleswomen, but models and salesmen may continue.
Generally, libel allowed for groups of less than 25 or when something points to a particular person within that group. But not for all jDs.

Bindrim v. Mitchell, Ct App CA ‘79
Pl held nude Marathon,- ok, they weren't naked, these are just very long group therapy sessions which are also naked. Mitchell wrote a book about this and signed a K not to. Pl claimed defamation by def, got substantial damages, ct gave new trial if pl accepts remittur, everyone appeals.
Def sez, I did not write about pl, I wrote about Santa Claus looking man named Herford. But the only differences btw pl and Herford are they look different and Herford was psychiatrist rather than psychologist, apparently anyone who knew Pl could reasonably identify him with Herford. There is overwhelming evidence that the two people were the same.
Test: whether a reasonable person readin the book, would understand that the fictional character therein pictured was in actual fact the pl acting as described. This is a question for the jury and was properly determined the first time round.
is it publication If it’s to only one person or a small group of persons rather than to the public at large? Well, even if it is just to one person other than the person defamed, that’s enough.

Issue is identification of libeled party, can he be identified? Reasonable jury could find that pl was identifiable. You don't need to say Pl's name if it's reasonably identifiable. Ooo someone's phone rang and she didn't have a fit.
Spose they had the statement this is fictional?

How do defamation/slander/libel relate? slander/libel are forms of defamation.

Like the Plath cases,

So how does South Park or similar satire shows continue to run? Test is not whether it is fiction, but does this show actual facts or actual events in which pl participated. Humourous nature won't protect from suit.

Libel: written defamation, slander: oral. Also damages, Slander requires special damages, or pecuniary loss, and libel DOES not require special damages. (probably question of proof)
Libel: publication of defamatory matter by written or printed words, or by its embodiment in physical form, or by any similar (pictures, etc.)
Slander: publication of defamatory matter by spoken words, transitory gestures, or by anything other than above.
The area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered in determining whether a publication is libel instead of slander.

Shor v. Billingsley Sup CT NY ‘56
Someone said someone else owes a bunch of people a lot o f$. This was not from a script but adlibbed so is it libel or slander? Defamatory remarks read from a script are libel. Broadcast makes it comparable to permanence of publication and can be damaged just as in by writing so should be actionable.
If this were in stadium, it would be slander, but this is not, I am not sure why. Libel also goes with movies. Pl prefers libel to slander, def prefers slander to libel because they have to prove special (pecuniary damages) for slander. Libel is generally written.

Most statutes say any broadcast defamation is slander.

For writing, there's durability of the communication and widespread, so no need for special damages.
Nowadays broadcast per statute is generally slander.

Terwilliger v. Wands, Ct of App NY ‘1858
Pl sez; def asked Wands what Pl was doing running after Fuller who was a bad woman. Pl was “prostrated in health and unable to attend to business thereafter.” Nonsuit motion sustained. We had to prove special damages, the natural immediate and legal consequence of the words.
For slanderous words actionable per se, they have a natural and immediate tendency to produce injury. But if they do not obviously import injurious defamation, we have to see some special damages, like loss of a marriage, loss of *hospitable gratuitous entertainment* (friendship?) preventing someone from getting a job, loss of custom, when a person is prevented by the slander from receiving what would otherwise be gotten, though gratuitously, it is sufficient.
Pl can’t and doesn’t prove that there was an injury to his character as a result of the slander. No one seems to like him differently or less.
Damages must flow from harm to reputation caused by the slander. Pecuniary loss.

Slander Per Se, don’t have to show damages for these types.
Spose he had written them down? He coulda gotten the $ cos that's different.
Imputations of major crime.

Loathsome disease, permanent lingering and incurable (and probably contagious) not for disease that you recover or die. Insanity, tuberculosis or other communicable diseases are not included.

Business, Trade, profession, or office, if it is likely to hurt your business, actionable.

Imputations of serious sexual misconduct.

How can you defame someone through their actions. You could burn an effigy of them. Doctor a photo of them. Sculpt them from frosting. You could point to them and sniff and hold your nose, do the circle thing, the gesture would be understandable as a statement. Publication = communication of the defamatory imputation, words are not necessary, to someone other than the person defamed. Other person must have received the communication and understood the defamatory meaning.

Def is corp which fires one of its employees, has security guard escort company off company premises. How do you argue that Pl has claim for defamation, there's communication bc done publicly and being escorted by security police shows something wrong done. how does corp respond to this, Well, it's true, and it's communicating just that you're fired, but are they falsely communicating that you've done something wrong, and then they did it to EVERYONE who was fired. What do you think happens when workplaces adopt the policy, you get fired, you get a security guard, it really kills morale.

Spose you yell at roomie, you're a disgusting slob, and someone overhears it, is publication met? Maybe, did you know other person was overhearing? is it really defamatory, did the other person know of whom this was said, is this at least negligent with regard to communicating the imputation to the third party, there's a state of mind requirement for publication, see Note 6. Must be done intentionally,

Important piece of defamation: party repeating the defamation is liable for its publication, even though he states the source and says he does not believe the imputation.

Why was Matchmaker.com not found liable, b/c not responsible for creating the information? Statutory immunity? Pl claimed that matchmaker was also information content provider b/c they provided questionnaire which facilitated matchmaker giving this. Statutory immunity is on p 863, see top of 864, selecting out of emails the ones you're going to edit and post does not make you an information provider, so what does that mean for my blog? Communications decency act means internet providers are treated more favourably and more protected from defamation liability than traditional media. Internet is different because people can self publish much more easily. Carrafano pl could certainly sue the person who created the profile for defamation, but she'd have to find him and he probably doesn't have any $ unlike Matchmaker.
When does communication carry defamatory meaning, when lowers in the eyes of community or deters someone from communicating with him. Community includes substantial and respectable group of members of the community, but we can't have group be people who have really weird views that no one else would view as derogatory.

867, what's with Ogden, single publication rule, to determine statute of limitations, we start with original publication date to determine statute of limitations, we don't want this to drag on every time book/newspaper is sold. Traditional common law rule was every time a new copy of the book was sold the SOL would restart. But this law sux, so let's change it.

Element of publication. Each
EDITION is a new publication. Broadcast/rebroadcast of movie/TVshow is a different publication, and then if different papers publish AP story, those are different publications.

What are the elements of the common law suit for defamation?
Def must make a communication, it has to have a defamatory meaning, communication has to be received and understood the defamatory meaning by someone, (publication) Has to be able to be reasonably understood to be about the pl. Has to identify pl in some way, of and concerning pl. False? Not an element under common law. Def's state of mind requirement? No. But, if slander, has to be special damages in the form of pecuniary loss. Don't need to show falsity, affirmative defense of truth. What's missing? Any kind of fault, you could accidentally defame someone.

NY Times v. Sullivan, Sup Ct '64

Public official can only sue for libel if there's actual malice, knowledge that was false or reckless disregard as to falsity. normally falsity is state law, and sup ct can't touch it, can only touch issues of fed law. Only the final authority on fed law. 1st amendment right to free speech is implicated in defamation cases.

Constitution ONLY protects you from the gov't, so free speech IS protected from the gov't, private parties can do whatever they want.

Review sullivan, read through 882-907. What does the constitution limit for private parties? Are the soldiers cute? 13th amendment abolishing slavery.

NY Times v. Sullivan, sup Ct US '64

Sullivan sued NY times and others for defamation after he was described as attacking students. Many of these things are wrong.
Goes on about libel per se, and Trial judge said these statements were libelous per se. Def has no defense beyond these were truthful statements. Fair comment for expressions of opinions means that facts have to be truthful to start with.
But we like debate on public issues to continue. Does it qualify for constitutional protection in light of its falsity?
No, it's not dependent on it's being true to be protected. Defamatory content is protected (?)
Should have 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. We really need to keep the debate as related to elected officials. We want to show actual malice, and there doesn't seem to be any here, so. And also libelous statements don't really concern Sullivan.

St. Amant v. Thompson, Sup Ct US 1968
St Amant made a political speech, charged pl with criminal conduct and then he got damages. Def had not acted with actual malice, but did seem to act in reckless disregard of the truth. St Amant did it recklessly but not knowingly.

Reckless disregard: def in fact entertained serious doubts as to the truth of his publication.

Harte Hanks communications v. connaughton
Sup Ct. US. 89
Can't get damages without proof that statment was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Found story published about Connaughton was false, defamatory and published with actual malice. Neither defamatory nor clearly erroneous.

There was actual malice, reckless disregard, def did entertain serious doubts as to the truth of his publication

There was sufficient evidence to conclude that def actually had a high degree of awareness of probable falsity.

Something long and tedious about tapes.
Evidence of an intent to avoid the truth can be enough to show actual malice.

NY Times standard is for public figure.

Gertz v. Robert Welch Sup Ct US '74

Gertz was atty for family against policeman, John Birch society said this was a commie campaign against the police, and he was a commie. DC said this Gertz was not a public official nor a public figure, and then said NY times standard applied and entered judgment for def,

Can Newspaper which publishes defamatory falsehoods about an individual who is neither a public official nor a public figure claim a constitutional privilege against liability for the injury inflicted by those statements.

States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual.

Christ, it's FREEZING in here. I was thinking, well, I'm not going to be laden with my coat today and then I wore it anyway, and boy am I glad.

Don is saying he wants to visit, but I am busy.
We learnt about constitutional limits on defamation. Must have identified pl as subject of the communication. Def communication musta been of and concerning. Need not have mentioned by name, if there are surrounding circumstances such that they can identify pl. Distinction btw libel and slander. Libel is written, slander is oral - slander requires special, pecuniary damages,
Restatment includes other forms of communication not written or printed but similar as libel.

Special damages for slander must flow from harm to reputation by slander. 4 categories of slander per se which are actionable w/o proof fo special damages.

communication is required. Read, heard, understood, that has to be defamatory, actions can be defamatory. For communication to 3d party to be defamatory, must be intentional or negligent.
We saw Ogden, only one cause of action resulting from original publication.

Fault is conspicuously absent from requirement of defamation. Truth is also absent I think.

Constitutional limits, NY v. Sullivan, state action limit on 1st amend is only applicable if gov't is limiting, private parties can limit all they want.

Gov't action is required b4 1st amend invoked, what was the state action in NY times v. Sullivan. Enforcement of judgment? No, the common law definition of defamation, AL law allowing one person to sue another for defamation.

Why does AL law threaten the 1st amend rights of those who criticise public officials? We start with state can't make it a crime to criticise public officials, State which has a law that says it's a crime if anything is factually inaccurate, that's bad.

state allowing civil action for damages in cases of criticism of public officials, that would greatly chill speech. Pl must prove actual malice, meaning def made statement either knowing that it was false or w/ reckless disregard as to its falsity. Must show more than mere negligence.
Now after NY v. Sullivan, Feds have a Constitutional interest in state defamation law, public officials/figures have to show actual malice.

St. Amant v. Thompson. Who has burden of proof of showing actual malice?
Actual malice, Def made statement either knowing it was false, or reckless disregard as to its falsity. For Reckless disregard, pl must prove that def entertained serious doubts as to truth of publication, and it's a subjective standard. Why do we allow people to publish lies with impunity?

O and now there's a lengthy debate.
1st amendment primarily wants to protect political speech which is true, so we need to protect some things around it.

Harte-Hanks communications v. Connaughton,

Reckless disregard is not a very good standard. Is an extreme departure from professional standards sufficient to show actual malice? NO, it says so towards the end of the case. Failure to investigate before publishing is not enough for reckless disregard.

We have purposeful avoidance of the truth which is enough. We got there by going on and on about some tapes.
Pl taped witness, gave the tape to paper, and then newspaper refused to listen to tape. Consciously turning a blind eye to differing information.

Something about public meeting has to be open to the public in order to report and be free from libel.
Common law reporter's privilege, unless a particular privilege, such as reporter's privilege applies, person is not protected from liability even if they say someone else said it etc.

Reporter has privilege to report on public proceedings, public documents, information of public concern, uttered at public meetings. If you report on a federal ct decision even if some of the information is untrue, still privileged, but under common law, it had to be a fair and accurate statement, or lost, but now it is better.

Privilege under Note 8 P 891. neutral reportage privilege, when a responsible, prominent organisation makes serious charges against a public figure, the 1st amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. Sup ct hasn't decided that this exists or not. Ooh I'm hungry. Does defamation protection exist for opinion.

Gertz,
As long as you don't impose liability without fault, states impose their own standards for liability for publisher or broadcaster. You have to have at least negligence. Can a state require actual malice? You can't allow these suits unless there's at least negligence. States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. (must have actual malice for punitive damages)

review it, Dun & Bradstreet, 907-915.
Dun and bradstreet, Sup Ct US '85
Dun & Bradstreet sent
It's hard to show presumed damages, so See P 904.

What question does Dun and Bradstreet leave open? What don't we know about private figure speech about private concern? Fault level.

Falsity
Philadelphia Newspapers, Inc. v hepps. Hepps was mad after Philadelphia newspapers claimed he had links to organised crime.
Private Pl had to prove negligence or malice by the defendant and
Defendant had to meet the burden of proving the truth of a defamatory statement.

Where a newspaper publishes speech of public concern, a private figure plaintiff cannot recover damages without also showing that the statements at issue are false.

See Note 2 P 912, something about the pl sued because newspaper said she had chlamydia, and this apparently is unprovable? What is she talking about. private figure pl cannot recover damages without showing that the statements at issue were false, Some statements that are false won't be remedied.

How is this a matter of public concern?

What are the constitutional limits on defamation law?
If you are trying to advise someone about defamation, what would you want to know?
Is she a public figure?
Categories are public official/figure- need AM- NYT v. Sullivan, private figure and public concern- at least negligence or private figure and private concern- that we don't know.
We still need burden of falsity, who has burden of proving truth or falsity? For public official or public figure, it's plaintiff, for private figure and public concern it's the plaintiff, media defendants, we don't know.
Also what about availability of presumed/punitive damages, yes they're available for the public official/figure, you have to show actual malice,
If it's a private figure/public concern, if there's actual malice, you can get presumed and punitive damages.
If you have a private figure and private concern, we get presumed/punitive damages from Dun and Bradstreet.

Review cases, Last one for the year! 915-938.
What are the elements? Level of fault required.

Gertz: defamation suits consistent with 1st amendment, doesn't have to be actual malice but we at least have to have negligence.
dun and bradstreet, presumed and punitive damages can be awarded to private pls for matters of purely private concern, we have to look at speech's content, form and context,
when media def publishes matter of public concern, burden of proving truth is placed on pl. in some cases this is important, burden of proof such as chlamydia is dispositive, if you don't know whoever has the burden of proof loses.

We don't know a lot about private figure damages for private speech.

Public officials and public figures, whether someone is one is usually important, makes a difference in who can win case. Public officials are persons who have substantial responsibility for or over conduct of govt affairs.

Federal state and local elected officials definitely. Many other govt employees can be also? Like Brownie?

Public figures: Universal and Limited. universal public figures, person must enjoy pervasive power and influence or pervasive fame and notoriety in public affiars.

Most public figures are limited, only to some particular controversy or set of events, must have evidence that pl voluntarily thrust herself into controversy and attempted to influence its outcome. Not limited purpose public figure just b/c she is newsworthy, only limited purpose public figure if two things are met:
1) preexisting public controversy
2) Pl injected herself into that controversy by voluntary action.

See P. 912, must involve a public issue that is publicly debated w/foreseeable and substantial ramifications for non participatns.

Most famous: Richard Jewell. He said he was private and then he only had to prove negligence not actual malice, but ga state ct said he was limited public figure, he inserted himself into debate by giving interviews and encouraging others to return to park.

Cts have recognised public figure status even when pl did not voluntarily inject herself into issues.

See bottom of 914, pursued a course of conduct from which it was reasonably foreseeable at the time of conduct that public interest would arise. Monica Lewinsky.

Who could be arguably but not definitively public figures? Like Lady McGreevey or Craig or lady Spitzer or Runaway bride? How would you argue Runaway bride is public figure, what is preexisting public controversy.
Racial issue and crime issue? Missing women issue?

Elian Gonzales! But kids are tough, can parents do something that makes their kids public figures so that the constitutional protection comes along.

What about if you represent a controversial client? But pl in gertz was an atty, not a limited public figure, but perhaps a more famous lawyer could be.
Lynndie England? Controversy was about prisoners and treatment and not war, so it wasn't preexisting public controversy.

But we don't want to draw everyone in the military to be public figure, or to draw everyone who has contact w/prisoners to be public figure.

Kemmerick is mad at me because I got a Lambda interview and he didn't. he had some word that I have forgotten about, but it was a word that I used fairly recently. Part of what is a real shame is that I do not care that much about these issues but Kemmerick actually does; I just want an internship. of course I am not going to tell THEM that. Now what did I write that got me this interview? They asked for a short statement. Now THAT is a scary laugh. That other girl is mad at me because I went to see Mattingly before her.

Ashley smith, the hostage in Brian nichols controversy. Preexisting public controversy, he had done all these bad things and was running around, and once she gives the interviews, she's definitely injecting herself, but then whatabout before?

We don't want anyone who's a victim of a crime to become public figure.
she was held hostage by a prisoner with a gun, so it's hard to argue about voluntary.


We have one of the first women combat pilots in the Navy was deemed a public figure, why? The other one died. She was just doing her job and only a peripheral figure, but then a combat thing is very special for women, she ended up with special prominence.

That guy thinks guys can't become librarians or it's not stereotypically male. he has done some tragic metaphor mixing with something about glass elevators.

Think of examples and argue that someone is a limited public figure for this standard of one and two and preexisting public controversy and then pl injected herself into controversy by voluntary action. Then argue against it.


Milkovich v. Lorain Journal Co, sup ct U.S. '90

Somehow this has been before the sup ct 3 times?

Holding: 1st amendment does not prohibit the application of Ohio's libel laws to the alleged defamations contained in the article for opinion.

is there special protection for opinion speech under the 1st amendment?

Milkovich was wrestling coach, respondent was newspaper which printed column about Milkovich lying and then pl alleged defamation.

Is it fact or opinion?

1) specific language used.

2) whether the statement is verifiable

3) the general context of the statement

4) the broader context in which the statement appeared.

We have enough protections, we don't want to specially protect opinion against defamation action.

Spose someone makes two statements. In my opinion, she's a slut, In my opinion, he's an asshole.

Which one of these statements is more likely to be actionable? Only statements that reasonably imply assertions of fact can be form the foundation of a defamation claim, see P 919.

Defamation cannot be based on statements that cannot reasonably be interpreted as stating actual facts about an individual.

Review notes and Sindorf and we will finish.
OOOOh, she is about to get him.

do you have to show actual malice for an entirely private concern?
No, actual malice is only for public figures, presumed and public

Property (I love to study with Mattingly)

Take an estate like that.
And put it in Fee Simple Absolute
Now along comes an owner, who's looking for trouble.
With the rule against perpetuities.
Who Knows how he'll write the grant? Who knows

People Who Smelt Bad This Week

Y'all I can be fairly confident in writing about one of the people who smelt bad this week, because he doesn't read this, but the other one I think he might read this, so I have to be nicer (read: More careful) about what I say.

At least two of the People Who Smelt Bad This Week had recently been exercising. One of them smelt like - ooh, it was reminiscent of the sardine meatballs Trey was famous for. Smelly fish and rotten ground beef. Ooh, and the other one, it was just bad, and we don't need to talk about Patchouli boy, because- you know, there's just no such thing as patchouli in Moderation.
& we went ot Avenue Q and I bought a digital camera, which I need to learn how to use, and

Somethin