I. DamagesA. General Information1. Damages used to deter a from
engaging in similar torts2. To restore back to pre-tort3. General
DeterrenceA goal of criminal law generally or of a specific
conviction & sentence, to discourage people from committing
crimes4. Specific DeterrenceA goal of a specific conviction &
sentence to dissuade the offender from committing crimes in the
future5. Present ValueSum of money that w/ compound interest, would
amount to a specific sum at a future date6. will not be permitted
to return to court later to collect for more damages that may
ariseB. Compensatory Damages 1. restores a plaintiff to pre-tort
status is permitting the recovery of compensatory damages.
Compensatory damages are typically comprised of economic losses and
noneconomic losses.a. Special Damages Economic losses, are losses
that are readily subject to objective measurement, include
pecuniary lossesb. Pecuniary Losses (Economic)i. lost earnings
income, including wages or salary, that the plaintiff was unable to
earn in the past because of the tortious injuryii. loss or
impairment of future earning capacity income, including wages or
salary, that the plaintiff would have earned in the future if the
plaintiff had not been tortiously injurediii. past and future
medical expenses expenses for medical treatment or healthcare.c.
General Damagesi. past and future physical pain and suffering
physical pain and suffering about which the plaintiff is aware as a
result of the plaintiffs physical injuriesii. Past and future
mental pain emotional distress caused by the plaintiffs
injuriesiii. Permanent disability and disfigurement injuries that
will indefinitely prevent a plaintiff from performing some or all
of the duties that could be performed before the injury or physical
disfigurement caused by tortious conduct3. Consortium Damages A
loss of consortium claim is an action that the plaintiff or injured
persons spouse, child, or parent is typically entitled to bring
based on injuries to him or her and deriving from the injuries to
the spouse or parent. 4. Spousal consortiumdamages typically
include recovery for loss of sexual relations, society,
companionship, affection, and financial support.5. Parental
consortium damages typically include recovery for loss of society,
affection, and companionship.6. Filial consortium damages
recoverable by a child for the loss of a parent, include the childs
society, affection, and companionship given to a parent.7.
Derivative Most consortium claims must be brought along with the
injured partys cause of action, it arises by virtue of the injury
to the plaintiff or injured person8. Loss of Enjoyment AKA Hedonic
Damagesthe detrimental alterations of a persons life or lifestyle
or a persons inability to participate in the activities or
pleasures of life that were formerly enjoyed9. Casesa. loss of
enjoyment of life is recoverable as a separate element of general
damages that may be included as a separate item on a jury verdict
form. (Mcgee v. AC & S, Inc)b. Courts may order a remittitur of
damages when a jurys assessment of damages is excessive based on
the evidence. (Richardson v. Chapman)i. remittitur: a means by
which the court can control an excessive jury awardii. additur:
courts order increasing the jurys award in order to avid a new
trial on inadequate damagesc. look at the lessor of the two to
rebuild/replacement cost or market value (In re September 11th
Litigation)d. The collateral source rule prevents the introduction
of evidence of payments received by an injured party from sources
collateral to the wrongdoer. (Montgomery Ward & Co, Inc. v.
Anderson)i. Collateral-source rule: prevents a tortfeasor from
benefiting from payments made to the for injuries: Workers comp,
insurance e. In order to recover for permanent injuries, a
plaintiff has a duty to mitigate those damages by submitting to
treatment that would cure the damages if a reasonable person would
do so under the same circumstances. (Zimmerman v. Ausland)i.
Mitigation of damages doctrine: prevents a from claiming damages
for a permanent injury if the permanency of the injury could have
been avoided by submitting to treatment when a reasonable person
would have done so.B. Punitive Damages1. damages that are awarded
above and beyond compensatory damages for the distinct purpose of
punishing a defendant for engaging in particularly egregious
conduct2. Sometimes called exemplary or vindictive damages 3.
Awards are often constrained by constitutional consideration 4. To
deter the from doing it again and set an example for others 5.
Casesa. The Due Process Clause of the 14th Amendment of the United
States Constitution (Constitution) limits the amount recoverable in
punitive damages when the damages constitute grossly excessive
punishment for a tortfeasor (BMW of North America, Inc. v. Gore)b.
C. Nominal Damages1. Damages are awarded but suffered no
substantial loss or injury2. It is a trivial amount of money
example $13. It is to recognize the s legal interest were
invaded/violated, despite the fact the no real loss was sufferedII.
Wrongful Death & Survival A. Wrongful Death Statue 1. by
statute, every jurisdiction permits recovery for the tortiously
caused death of another by their family spouse kids, must prove
liability/negligence 2. A wrongful death action is a new,
independent statutory cause of action that inures to the benefit of
statutorily defined plaintiffs. 3. wrongful death statutes
typically allow for specifically defined family members of the
deceased to recover for injuries caused by the death. 4. Loss of
enjoyment loss of society 5. Wrongful Death Statuteswere enacted so
that defined beneficiaries (spouse/children) of one tortiously
killed could bring a tort action for injuries caused by that
death6. Damages: may have hard money7. defenses: contributory
negligence & assumption of risk 7. Casesa. The Supreme Court
overturns its previous holding in The Harrisburg and allows for a
wrongful death action in maritime law. (Moragne v. States Marine
Lines Inc.)i. Maritime Law: governing marine commerce &
navigate the carriage of sea of persons/property & marine
affairs in generalb. Under Nebraska law, the loss of society,
comfort and companionship are recoverable for a childs death in a
wrongful death suit. (Selders v. Armentrout)B. Survival Statutes 1.
Permits specified causes of action, which either may have been
brought by a prior to her death or against a prior to his death2.
were enacted to permit a decedents estate to bring any actions that
were extinguished by the decedents death, gone but their estate3.
Loss wages, medical expenses, if both tortfeasor dies goes after
their estate4. Cases a. Damages for loss of property, loss of wages
and the pain and suffering of a decedent are allowed under survival
statutes when the decedent later dies from injuries which created
the cause of action. (Murphy v. Martin Oil Co.)III. Joint
TortfeasorA. Joint & Liability of 1. is a form of liability
that is used in civil cases where two or more people are found
liable for damages, acting in concert is main idea, the drag racing
example 2. winning plaintiff in such a case may collect the entire
judgment from any one of the parties, or from any and all of the
parties in various amounts until the judgment is paid in full. In
other words, if any of the defendants do not have enough money or
assets to pay an equal share of the award, the other defendants
must make up the difference.3. Vicarious Liability: doctrine that
imposes responsibility upon one person for the failure of another,
with whom the person has a special relationship (such as
parent/child, employer and employee, or owner of vehicle and
driver), to exercise such care as a reasonably prudent person would
use under similar circumstances.4. Joint tortfeasor2 or more
tortfeasors who contributed to the claimants injury & who may
be joined as s in the same lawsuit5. 15When a persons are liable
because they acted in concert, all persons are jointly &
severally liable for the share of comparative responsibility
assigned to each person engaged in concerted activity (concert:
induced & encouraged the tort)6. Joint & Several
liabilityliability that may be apportioned either among 2 or more
parties OR to only one or a few members of the group, at the
adversarys discretion, each liable party is individually
responsible for the entire obligation, but a paying party may have
a right of contribution and indemnity from nonpaying parties, one
injury with two or more causes7. Statutory Limitations Many states
have limited the joint liability doctrine by statute in cases based
on fault. Two of the most common types of statutes abolish joint
liability either (i) for those tortfeasors judged to be less at
fault than the plaintiff, or (ii) for all tortfeasors with regard
to noneconomic damages (e.g., pain and suffering). The liability of
a tortfeasor in these situations is proportional to his fault. 8.
Casesa. When two or more individuals are wrongdoers acting in
concert and their actions injure a third party, all may be liable
for concurrent negligence, regardless of which of the individuals
directly caused the injury. (Bierczynski v. Rogers)b. Joint and
several liability is still applicable when contributory negligence
is replaced by comparative negligence. (Coney v. J.L.G. Industries)
c. that the original tortfeasor is not jointly & severally
liable for further agrriavation of an original injury caused by a
subsequent tortfeasors medically negligent treatment of the injury
caused by the original tortfeasors negligence (Banks v. Elks Club
Pride of Tennessee)B. Satisfaction & Release 1. Satisfaction If
plaintiff recovers full payment from one tortfeasor, either by
settlement or payment of a judgment, there is a satisfaction. She
may not recover further against any other joint tortfeasor. Until
there is a satisfaction, however, she may proceed against other
jointly liable parties. 2. ReleaseA release is a surrender of
plaintiffs cause of action against the party to whom the release is
given. In most states, a release of one tortfeasor does not
discharge other tortfeasors unless expressly provided in the
release agreement. Rather, the claim against the others is reduced
to the extent of the amount stipulated in the agreement or the
amount of consideration paid, whichever is greater.3. Covenant not
to sueentered into by a party who had a cause of action at the time
of making it, and by which he agrees not to sue the party liable to
such action.4. Apportionment of Liability 24aA settlement is a
legally enforceable agreement in which a claimant agrees not to
seek recovery outside the agreement for specified injuries or
claims from some or all the persons who might be liable for those
injuries or claims. 5. Mary Carter agreementa. A contract (usually
a secret one) by which one or more, but not all, codefendants
settle with the plaintiff and obtain a release, along with a
provision granting them a portion of any recovery from the
nonparticipating codefendants. In a Mary Carter agreement, the
participating codefendants agree to remain parties to the lawsuit
and, i no recovery is awarded against the nonparticipating
codefendants, to pay the plaintiff a settled amount. Such an
agreement is void as against public policy in some states but is
valid in others if disclosed to the jury. b. is typically
accomplished by the settling tortfeasor guaranteeing the plaintiff
a minimum recovery, regardless of the outcome of the suit against
the nonsettling defendants. The settlement then provides that the
more that is recovered by the plaintiff from the nonsettling
tortfeasors, the less that the settling tortfeasor is required to
pay. 6. Peremptory Challengeshas the right to dismiss a potential
juror during jury selection w/o having to state a reason, each
party to a lawsuit is typically given the same number of
challenges7. Casesa. P may not recover fully from one P and then
proceed to recover from another P since P has already received
satisfaction. (Bundt v. Embro)b. The court will look to the intent
of the parties to the contract when determining if a covenant not
to sue releases all tortfeasors who may have liability. (Cox v.
Pearl Investment Company)c. the Texas Supreme Court has voided the
validity of Mary Carter agreements based on public policy
considerations. (Elbaor v. Smith)C. Contribution & Indemnity1.
Apportionment of Liability 22. Indemnity **a. When two or more
persons are or may be liable for the same harm and one of them
discharges the liability of another in whole or in part by
settlement or discharge of judgment, the person discharging the
liability is entitled to recover indemnity in the amount paid to
the plaintiff, plus reasonable legal expenses, if:1. the indemnitor
has agreed by contract to indemnify the indemnitee, or2. the
indemniteei. was not liable except vicariously for the tort of the
indemnitor, orii. was not liable except as a seller of a product
supplied to the indemnitee by the indemnitor and the indemnitee was
not independently culpable.b. A person who is otherwise entitled to
recover indemnity pursuant to contract may do so even if the party
against whom indemnity is sought would not be liable to the
plaintiff.-when someone is liable but didn't do anything wrong (emp
v. empr)2. 23. Contribution **a. When two or more persons are or
may be liable for the same harm and one of them discharges the
liability of another by settlement or discharge of judgment, the
person discharging the liability is entitled to recover
contribution from the other, unless the other previously had a
valid settlement and release from the plaintiff.b. A person
entitled to recover contribution may recover no more than the
amount paid to the plaintiff in excess of the persons comparative
share of responsibility.c. A person who has a right of indemnity
against another person under 22 does not have a right of
contribution against that person and is not subject to liability
for contribution to that person.-when a tortfeasor pays more than
their part and sues the other guilty party for their part3.
Difference between contribution & indemnification**
Contribution is defined as a sharing of the cost of an injury as
opposed to a complete shifting of the cost from one to another,
which is indemnification. Common liability is required between a
party seeking contribution and the party from whom it is sought. .
. .Principles of indemnification and contribution are not
interchangeable. Indemnification is distinguishable from the
closely related remedy of contribution in that the latter involves
a sharing of the loss between parties jointly liable.4. Casesa. In
order to receive contribution, joint liability must be present.
(Yellow Cab Co of D.C v. Dreslin)b. The common law doctrine of
joint and several liability holds joint tortfeasors responsible for
the plaintiffs entire injury, allowing plaintiff to pursue all,
some, or one of the tortfeasors responsible for his injury for the
full amount of the damages (Sakellariadis v. Campbell)c. The right
to indemnity is allowed only when the indemnitee is vicariously or
derivatively liable for the wrongful act of another. (Slocum v.
Donahue)D. Apportioning Damages among tortfeasors1. Casesa. A jury
must determine if damages are available when a decedent is killed
by the negligence of defendant, but decedent would have died or
been seriously injured regardless of the negligence. Where
plaintiffs own actions/fault would have resulted in injury/damage,
defendant only liable for that damage his negligence caused in
addition to or as compared to the damage that was or would have
been caused by the plaintiffs own (Dillion v. Twin State Gas &
Electric Co)b. Four categories of tortfeasors may be generally
recognized as being liable jointly and severally: 1. The actors
knowingly join in the performance of the tortious act or acts. 2.
The actors fail to perform a common duty owed to the plaintiff. 3.
There is a special relationship between the parties (i.e.
employer-employee, joint venturers, etc.) 4. Although there is no
concurrent action, nevertheless the independent acts of several
actors concur to produce indivisible harmful consequences. Before
recovery based on joint and several liability is permitted, the
courts must find first that the harm for which the plaintiff seeks
damages in indivisible. (Michie v. Great Lakes Steel Division,
National Stell Corporation)c. is when two or more persons acting
independently cause the harm to a 3rd person through consecutive
acts of negligence closely related in point of time (Bondy v.
Allen)IV. ImmunitiesA. Immunity1. is an absolution from tort
liability based on a s status in society or with the 2. Privilege
v. Immunitycircumstances v. status3. Important to society as a
whole that the benefit of inldulation from suit outweighs the
injury caused by any tortious conduct4. may actually committed the
tort but gets immunity because of status in the relationshipB.
Families 1. Husband-Wifea. both husbands and wives may recover
damages for loss of their spouses consortium or services because of
injuries to the spouse from defendants tortious conduct, whether
intentional, negligent, or based on strict liability.2. Parents
Actiona. A parent may maintain an action for loss of the childs
services when the child is injured as a result of defendants
tortious conduct, whether such conduct is intentional, negligent,
or based on strict liability. b. Most states have abolished
interspousal immunity. Either spouse may now maintain a tort action
against the other 3. Child Actionsa. A child has no action in most
jurisdictions against one who tortiously injures his parent. b.
child v. parents doesn't usually happen, the parents have to pay
anyway c. A slight majority of states have abolished parent-child
immunity; however, these states generally grant parents broad
discretion in the parents exercise of parental authority or
supervision. The remaining states retain parent-child immunity but
do not apply it in cases of intentional tortious conduct and, in
many of these states, in automobile accident cases (at least to the
extent ofinsurance coverage)4. Casesa. Restatement (Second) Torts
895F (1979) provides: 1. A husband or wife is not immune from tort
liability to the other solely by reason of that relationship.2.
Repudiation of general tort immunity does not establish liability
for an act or omission that, because of the marital relationship,
is otherwise privileged or is not tortious. (Heino v. Harper)b.
parental Immunity At common law, the parental immunity doctrine
operated as a nearly absolute bar to suit by a child for personal
injuries caused by a parent, no matter how wrongful the parents
conduct (Zellmer v. Zellmer)C. Charities1. The majority of
jurisdictions have abrogated the common law rule of charitable
immunity either by statute or decision. Even where such immunity
still exists, it is riddled with exceptions.2. Casesa. D.
Employers1. Workers Compensationa. provide a no-fault remedy to
employees suffering work-related & occupational injuriesb.
provides a certain percentage of their income lost as a result of
work-related injuries and medical expense2. Provide an immunity
from a workers suit alleging injury cause by the employers
negligence3. Casesa. Where, as here, an employee is injured on the
employers premises during regular working hours, when the injury
occurs while the employee is engaged in an activity which the
employer has requested her to undertake, and when the
injury-causing activity is of service to the employer and benefits
the employers business, the conditions imposing liability for
compensation under Labor Code section 3600 are met as a matter of
law, and it is immaterial that the activity causing the injury was
not related to the employees normal duties or that the
circumstances surrounding the injury were unusual or unique (Eckis
v. Sea World Corp.)b. The Act covers injuries sustained from risks
incidentally and directly connected to that particular employment
(Sisk v. Tar Heel Capital Corp)E. Local & State Government1.
State: substantially waived their immunity from tort actions to the
same extent as the federal government. Thus, immunity still
attaches for discretionary acts and for legislative and judicial
decision making. 2. Local: 1/2 the states have abolished local
immunity by statute or judicial decision to the same extent that
they have waived their own immunity. Hence, immunity is abolished
for everything but discretionary acts and policy decisions. 3.
Historically, the doctrine of governmental immunity provided a
valid defense against tort liability for all local, state, and
federal governments. In order to be sued in tort, the government
had to give permission to be sued, with that permission granted by
statute. However, as discussed in Ayala, this notion of
governmental immunity has eroded over the year4. 895c Local
Government Entities1. Except as stated in Subsection 2. a local
government entity is not immune from tort liability.2. A local
governmental entity is immune from tort liability for acts and
omissions constituting a.the exercise of a legislative or judicial
function, andb. the exercise of an administrative function
involving the determination of fundamental governmental policy.3.
Repudiation of general tort immunity does not establish liability
for an act or omission that is otherwise privileged or is not
tortious.5. 895D(3)A public officer acting within the general scope
of his authority is not subject to tort liability for an
administrative act or omission ifa. he is immune because engaged in
the exercise of a discretionary function,b. he is privileged and
does not exceed or abuse the privilege, orc. his conduct was not
tortious because he was not negligent in the performance of his
responsibility. 6. Public Duty DoctrineWhere municipal immunity has
been abolished, many courts apply the this to limit the government
liability. A duty that is owed to the public at large, such as the
duty of police to protect citizens, and no liability exists for
failure to provide police protection in the absence of a special
relationship between the municipality and the citizen that gives
rise to a special duty. (not an affirmative defense)7. Special
relationship a. an assumption by the municipality, through promises
or actions, of an affirmative duty to act on behalf of the party
who was injured; b. knowledge on the part of the municipalitys
agents that inaction could lead to harm; c. some form of direct
contact between the municipalitys agents and the injured party; d.
that partys justifiable reliance on the municipalitys affirmative
undertaking 8. Sovereign Immunitya. govt immunity from being sued
w/n its own courts w/o its consent b. immunity from being sued in
federal court by the states own citizen9. Casesa. The defense of
governmental immunity is no longer applicable in Pennsylvania
(Ayala v. Philadelphia Board of Public Education)b. Police
authorities are not liable for failing to provide special
protection to individuals threatened with harm (Riss v. New York)c.
When a municipality voluntarily assumes a duty and negligently
performs the duty, the municipality may be held liable if its
conduct somehow increased the risk to defendant (DeLong v. Erie
County)F. United States Government1. By virtue of the Federal Tort
Claims Act, Title 28 U.S.C., the United States has waived immunity
for tortious acts. Under its provisions, the federal government may
now be held liable to the same extent as a private individual2.
United States Still Immune for Certain Enumerated Torts Immunity
still attaches for assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel and slander,
misrepresentation and deceit, & interference with contract
rights3. 895D(2)Public officers provides that a public officer
acting within the general scope of his authority is immune from
tort liability for an act or omission involving the exercise of a
judicial or legislative function.4. FTCA Federal Tort Claims Act
waives the sovereign immunity of the United States under limited
circumstances5. CaseThe discretionary function exception to the
FTCA disallows civil suit against the United States when the
conduct complained of was based upon the exercise of a
discretionary function or duty (Deuser v. Vecera)V. Vicarious
Liability **1. That one person commits a tortious act against a
third party, and another person is liable to the third party for
this act2. This may be so even though the other person has played
no part in it, has done nothing whatever to aid or encourage it, or
indeed has done everything possible to prevent it. This liability
rests upon a special relationship between the tortfeasor and the
person to whom his tortious conduct is ultimately imputed.A.
Respondent Superior **1. employer will be vicariously liable for
tortious acts committed by her servant/ employee if the tortious
acts occur within the scope of the employment relationship2. an
employer is ordinarily liable for the injuries its employees cause
in the course of their work3. imposes liability whether or not the
employer was itself negligent, and whether or not the employer had
control of the employee. The doctrines animating principle is that
a business should absorb the costs its undertakings impose on
others4. Ratification5. Punitive Damages6. Doing what they should
be, on the premises, following the duties, is it during business
hours, can deviate from the scope and then go back7. Control is the
key word, how much control they have over the subcontractor 8.
casesa. the franchisor is vicariously liable for the tort of the
conduct of the franchisor when it in fact has control or right of
control over the daily operation of the specific aspect of the
franchisees business that is alleged to have caused the harm. The d
did not have control of the employees intention. (Papa Johns
International v. McCoy)B. Independent Contractors1. not be
vicariously liable for tortious acts of her agent if the latter is
an independent contractor. Two broad exceptions exist, however:a.
engaged in inherently dangerous activities, e.g., excavating next
to a public sidewalk, blasting. b. The duty, because of public
policy considerations, is simply nondelegable, e.g., the duty of a
business to keep its premises safe for customers2. Independent
Contractorone who engages to perform a certain service for another
according to his own methods and manner, free from control and
direction of his employer in all matters connected with the
performance of the service except as to the result thereof3. 423
Making or Repair of Instrumentalities Used in Highly Dangerous
ActivitiesOne who carries on an activity which threatens a grave
risk of serious bodily harm or death unless the instrumentalities
used are carefully constructed and maintained, and who employs an
independent contractor to construct or maintain such
instrumentalities, is subject to the same liability for physical
harm caused by the negligence of the contractor in constructing or
maintaining such instrumentalities as though the employer had
himself done the work of construction or maintenance4. Ordinary
with supervision or with out, who supplies the tools and other em.,
where is the job being done at, is it part of the regular business,
is there a K and what does it say?, tax status 10-99 vs W2, C.
Joint Enterprise1. similar to a partnership, is for a more limited
time period and more limited purpose. It is generally an
undertaking to execute a small number of acts or objectives. A
joint venture exists when two or more people enter into an activity
if two elements are present:a. Common Purpose The test is not
precise, but it would appear that the majority of courts would now
look for a business purpose. The sharing of expenses between
individuals is often highly persuasive.b. Mutual Right of Control
It is not crucial that the party does or does not give directions;
it is sufficient if there is an understanding between the parties
that each has a right to have her desires respected on the same
basis as the others 2. Each member of a partnership or joint
venture is vicariously liable for the tortious conduct of another
member committed in the scope and course of the affairs of the
partnership or joint venture 3. 491 Elements 1. an agreement,
express or implied, among the members of the group; 2. a common
purpose to be carried out by the group; 3. a community of pecuniary
interest in that purpose, among the members; and 4. an equal right
to a voice in the direction of the enterprise, which gives an equal
right of controlD. Bailments1. the bailor is not vicariously liable
for the tortious conduct of his bailee 2. CasesE. Imputed
Contributory Negligence1. 5The negligence of another person is
imputed to a plaintiff whenever the negligence of the other person
would have been imputed had the plaintiff been a defendant, except
the negligence of another person is not imputed to a plaintiff
solely because of the plaintiffs ownership of a motor vehicle or
permission for its use by the other personF. Statue of limitation
1. only have a certain amount of time to file VI. Nuisance **A.
Private Nuisance1. Substantial, unreasonable interference w/
private individuals use or enjoyment of their property, interferes
w. s use & enjoyment of their propertya. Substantial: is
offensive, inconvenient, or annoying to an average person in the
community, doesn't apply to hypersensitivity b. Unreasonable: the
severity of the inflicted injury must outweigh the utility of
defendants conduct i. amount of harm resulting from the
interferenceii. relative capacity of & to bear the loss by
shifting the cost through insurance or business expense iii. nature
of each partys use of their propertyiv. nature of localityv. which
party began use of property first c. trespass to land: interference
with use or enjoyment 2. a right to be free from certain
interferences w/ the use and enjoyment of her land resulting from
non-trespassory invasions. owner/enpossesor can sue, actual
possession or right to immediate person3. 821D Private NuisanceA
private nuisance is a non-trespassory invasion of anothers interest
in the private use and enjoyment of land.4. 821F. Significant
HarmThere is liability for a nuisance only to those to whom it
causes significant harm, of a kind that would be suffered by a
normal person in the community or by property in normal condition
and used for a normal purpose.5. 822. General RuleOne is subject to
liability for a private nuisance if, but only if, his conduct is a
legal cause of an invasion of anothers interest in the private use
and enjoyment of land, and the invasion is eithera. intentional and
unreasonable, orb. unintentional and otherwise actionable under the
rules controlling liability for negligent or reckless conduct, or
for abnormally dangerous conditions or activities.B. Public
Nuisance1. a substantial and unreasonable interference with
community interests or the general publics convenience or comfort,
act by that obstructs or causes inconvenience or damage to general
public in exercise of rights common to all,or in enjoyment or use
of common property2. interferes w/ health, safety or property
rights of the community3. 821B. Public Nuisance1. A public nuisance
is an unreasonable interference with a right common to the general
public.2. Circumstances that may sustain a holding that an
interference with a public right is unreasonable include the
following:a. Whether the conduct involves a significant
interference with the public health, the public safety, the public
peace, the public comfort or the public convenience, orb. whether
the conduct is proscribed by a statute, ordinance or administrative
regulation, or c. whether the conduct is of a continuing nature or
has produced a permanent or long-lasting effect, and, as the actor
knows or has reason to know, has a significant effect upon the
public right.C. General1. 826. Unreasonableness of Intentional
InvasionAn intentional invasion of anothers interest in the use and
enjoyment of land is unreasonable ifa. the gravity of the harm
outweighs the utility of the actors conduct, orb. the harm caused
by the conduct is serious and the financial burden of compensating
for this and similar harm to others would not make the continuation
of the conduct not feasible.2. 827. Gravity of HarmFactors
InvolvedIn determining the gravity of the harm from an intentional
invasion of anothers interest in the use and enjoyment of land, the
following factors are important:a. the extent of the harm
involvedb. the character of the harm involved;c. the social value
that the law attaches to the type of use or enjoyment invaded;d.
the suitability of the particular use or enjoyment invaded to the
character of the locality; ande. the burden on the person harmed of
avoiding the harm.3. 828. Utility of ConductFactors InvolvedIn
determining the utility of conduct that causes an intentional
invasion of anothers interest in the use and enjoyment of land, the
following factors are important: a the social value that the law
attaches to the primary purpose of the conduct;b. the suitability
of the conduct to the character of the locality; andc. the
impracticability of preventing or avoiding the invasion.4. 829.
Gravity vs. UtilityConduct Malicious or IndecentAn intentional
invasion of anothers interest in the use and enjoyment of land is
unreasonable if the harm is significant and the actors conduct isa.
for the sole purpose of causing harm to the other; orb. contrary to
common standards of decency.5. 829A. Gravity vs. UtilitySevere
HarmAn intentional invasion of anothers interest in the use and
enjoyment of land is unreasonable if the harm resulting from the
invasion is severe and greater than the other should be required to
bear without compensation6. 831. Gravity vs. UtilityConduct
Unsuited to LocalityAn intentional invasion of anothers interest in
the use and enjoyment of land is unreasonable if the harm is
significant, anda. the particular use or enjoyment interfered with
is well suited to the character of the locality; and b. the actors
conduct is unsuited to the character of that locality7. 840DThe
fact that the plaintiff has acquired or improved his land after a
nuisance interfering with it has come into existence is not in
itself sufficient to bar his action, but it is a factor to be
considered in determining whether the nuisance is actionable.8.
Nuisances Per Senuisance per law, is that which is a nuisance in
itself & which cannot be conducted or maintained as to be
lawfully carried on or permitted to exist. leaky nuclear-waste
stooge facility 9. Nuisance Per Accidensexists because of the
circumstances of the use or particular location. nuisance in fact.
By virtue of the circumstances surrounding the use. 10. Need
substantial & unreasonable harm to a. substantial is something
a reasonable person would take offense tob. unreasonable is harm
done outweighs justifications for actioni. suitabilityii. values of
properties-look at the neighborhood, million $ home ex. iii. cost
to to eliminate iv. societal benefits11. goes w/ trespass 12. try
to get injunctionD. Remedies1. Damageshas to have suffered a unique
damage, the usual remedy is damages2. Injunctive Reliefa. when
legal remedy of damages is unavailable or inadequatei. inadequate:
continuing wrong, is of the kind that will cause irreparable injury
etc.b. courts take into consideration the relative hardships that
will result to the parties from the grant or denial of the
injunction. Hardships will not be balanced, however, where
defendants conduct was willful 3. Abatement by Self-helpa. private:
can enter s property and personally abate the nuisance after notice
to and refuses to act, force only necessary to accomplish the
abatement, will be liable for additional harmb. public: suffered
unique damage has similar to private, in absence of unique damages
only abated by public authority E. Defenses1. Legislative
Authorityconsistent with zoning ordinance or license permits is
relevant but not conclusive evidence 2. Conduct of othersno one
actor is liable for all the damage caused by his acts and others3.
Contributory negligencenot ordinarily a defense, when based on
negligence theory can not avoid his own wrong doing would have to
prove his freedom from his negligence 4. Coming to the Nuisanceby
purchasing land and moving in next to the nuisance after it is
already in existence or operation? prevailing rule is that, in the
absence of a prescriptive right, the defendant may not condemn
surrounding premises to endure the nuisance; i.e., the purchaser is
entitled to reasonable use or enjoyment of his land to the same
extent as any other owner as long as he buys in good faith and not
for the sole purpose of a harassing lawsuit. 5. good for society,
working on a cure, F. Cases1. Idaho law does not follow subsection
b of the Restatement allowing for the payment of damages when the
gravity of the harm is outweighed by the utility of the conduct,
yet the harm is serious and the payment is feasible without forcing
discontinuation of the business. Carpenter v. Double R Cattle 2.
Indiana Code section 32-30-6-6 (2006) defines an actionable
nuisance as follows: Whatever is: (1) injurious to health; (2)
indecent; (3) offensive to the senses; or (4) an obstruction to the
free use of property; so as essentially to interfere with the
comfortable enjoyment of life or property, is a nuisance, and the
subject of an action. Mills v. Kimbley3. A private nuisance may be
asserted by those with property rights and privilege in respect to
the use and enjoyment of the land affected, including possessor of
the land Not one who is there only part time. No injunction Hot Rod
Hill Motor Park v. Triolo4. A subsequent bona fide purchaser of
land cannot claim private nuisance against a previous owner for
damage done to the land. A Plaintiff cannot claim a tort action for
public nuisance against a Defendant unless the Plaintiff can claim
particular damages suffered due to an interference with a public
right. Philadelphia Electric Company v. Hercules Inc.5. When a
nuisance is of such a permanent and unabatable nature that a single
recovery can be had, there can be only one recovery. Boomer v.
Atlantic Co.6. When a developer has brought into a previously
agricultural or industrial area the population, which makes the
granting of an injunction necessary, the developer must indemnify
the enjoined business if the impending injunction was foreseeable
by the developer. Spur Industries, Inc. v. Del E. Webb Development
Co7. Because the business was operating without a license or
permit, and in violation of federal law, it was a nuisance per se
that could be abated by injunction. city of claremont v kruseVII.
Products LiabilityA. Negligence 1. must prove: legal duty, breach
of the duty, actual & proximate cause, damages2. Duty of care
to a. must be Commercial Suppliers: manufacturer of a chattel or a
component part thereof, assembler, wholesaler, retailer, or even a
used car dealer who sells reconditioned or rebuilt cars. Those who
repair a product owe a general duty of care, but are not usually
suppliers for purposes of products liability cases.b. A retailer
who labels a product as the retailers own or assembles a product
from components manufactured by others is liable for the negligence
of the actual manufacturer, even though the retailer is not
personally negligent.c. Privity not required: the relationship
between parties each having al legally recognized interest in the
same subject3. Breacha. must show negligent conduct leading to the
suppling of a defective productb. liability of manufacturer: may
invoke res ipsa loquitur if error is something that usually wont
occur w/o negligence c. liability of dealer: retailers/wholesalers,
majority view is that if buy from a reputable supplier then only
need to do a cursory inspectiond. Proof: must show that the
designers knew or should have the dangers of marketing the items as
designed. not shown if after hits the market and finds a defect4.
Causationa. failure to discover the defect is NOT superseding
cause, defendant whose original negligence created the defect will
be held liable along with the intermediary. when the intermediarys
conduct becomes something more than ordinary foreseeable
negligence, it becomes a superseding cause5. Damagesa. recover
personal injury & property damages6. Cases a. The general rule
is that a contractor, manufacturer, vendor, or furnisher of an
article is not liable to third parties who have no contractual
relations with him for negligence in the construction, manufacture,
or sale of such article MacPherson v. buick MotorB. Strict
Liability 1. 402A1. 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, ifa. the
seller is engaged in the business of selling such a product, andb.
it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.2. The rule
stated in Subsection (1) applies althougha. the seller has
exercised all possible care in the preparation and sale of his
product, andb. the user or consumer has not bought the product from
or entered into any contractual relation with the seller.2.
Products Liability 1 Liability of Commercial Seller or Distributor
for Harm Caused by Defective ProductsOne engaged in the business of
selling or otherwise distributing products who sells or distributes
a defective product is subject to liability for harm to persons or
property caused by the defect.3. Must prove: commercial supplier,
produced/sold a defective product, product was actual &
proximate cause, suffered damages a. commercial supplier: is a
manufacture/retailer/wholesaler/assembler, only supply the items
not the seller of the itemsb. items can not be changed at allc.
privity not required: buyers, buyers family, guests, friends,
employees, foreseeable bystandersd. prove the product was indeed
defective e. actual cause: harm suffered to a defect in the product
that existed when the product left the defendants control, if not
may rely on an inference this type of product failure would result
f. proximate cause: same as negligenceg. damages: personal injury,
property loss, most will NOT award for economic lossh. defenses:
contributory negligence, competitive negligence, disclaimers of
liability ineffective (irrelevant of personal injury or property
damages has occurred)4. Cases1. Individuals injured by products
with design or manufacturing defects may bring suit under strict
liability regardless of a failure to give timely notice to the
manufacturer for a breach of warranty. Greenman v. Yuba Power
Products IncC. Product Defects1. Manufacturing or Construction
Defectsa. Products Liability 2(a)A product contains a manufacturing
defect when the product departs from its intended design even
though all possible care was exercised in the preparation and
marketing of the product. 2. are variations from the intended
design of a product that may understandably occur in a small
percentage of products as a result of shortcomings in the
manufacturing process, e.g., when a product is somehow physically
flawed, damaged, or improperly assembled.3. plaintiffs alleging a
manufacturing defect must establish that the product deviated from
either the manufacturers intended design or from other products of
the same design.4. has the burden of proving that the defect
existed at the time that the product left the hands of the
manufacturer 5. prevail if the product was dangerous beyond the
expectation of the ordinary consumer because of a departure from
its intended design.6. product not in condition manufacturer
intendedD. Design Defect1. must show a reasonable alternative
design, i.e., that a less dangerous modification or alternative was
economically feasible.2. Feasible alternatives a. usefulness and
desirabilityb. availability of safer alternative productsc. the
dangers of the product that have been identified by the time of
triald. likelihood & probable seriousness of injurye.
obviousness of the dangerf. normal public expectation of dangerg.
avoidably of injury by care in use of product:
instructions/warningsh. feasibility of eliminating the danger w/o
seriously impairing the products function/making it unduly
expensive3. 4B government safety in connection with liability for
defective design a products compliance with an applicable product
safety statute or administrative regulation is properly considered
win determining whether the product is defect with respect to the
risks sought to be reduced by the statute or regulation, but such
compliance does not preclude as a matter of law a finding or
product defect.4. 2(b)A product is defective in design when the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe.5.
Harder to prove, product was in condition but was designed in in an
unsafe way to present undue risk of harma. risk utility test1. the
utility of the product to the user and to the public as a whole
weighed against the gravity and likelihood of injury from its use;
2. the availability of a substitute product which would meet the
same need and not be unsafe or unreasonably expensive; 3. the
manufacturers ability to eliminate the unsafe character of the
product without seriously impairing its usefulness or significantly
increasing its costs; 4. the users anticipated awareness of the
dangers inherent in the product and their avoidability because of
general public knowledge of the obvious condition of the product,
or of the existence of suitable warnings or instructions; and 5.
the expectations of the ordinary consumer.b. consumer expectation
how the reasonable person would use it5. Casesa. plaintiff must
prove that 1. the product was defectively designed so as to render
it unreasonably dangerous; 2. a safer alternative design existed;
and 3. the defect was a producing cause of the injury for which the
plaintiff seeks recovery Timpte Indus, Inc v. Gish b. compliance
with applicable regulations is admissible in connection w/
liability for defect design Malcolm v. Evenflo CoE. Warning Defect
1. 2(c) A product is defective because of inadequate instructions
or warnings when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable
instructions or warnings and the omission of the instructions or
warnings renders the product not reasonably safe.2. 3
Circumstantial Evidence Supporting Inference of Product DefectIt
may be inferred that the harm sustained by the plaintiff was caused
by a product defect existing at the time of sale or distribution,
without proof of a specific defect, when the incident that harmed
the plaintiff:a. was of a kind that ordinarily occurs as a result
of product defect; andb. was not, in the particular case, solely
the result of causes other than product defect existing at the time
of sale or distribution.3. Defenses: scientific manner: no one knew
if used in this manner it would cause problems, comparative
fault:fact intensive 4. Cases a. Anderson v. Owens-Corning
Fiberglas Corp.b. Freidman v. General Motors Corp.VIII.
DefamationA. Defamation1. 558 Elementsa. defamatory language on the
part of the b. language must be of or concerning the , id the c.
publication of the language by to 3rd persond. damage to reputation
to e. falsity (if public figure)f. fault of s part2. Defamatory
Languagea. inducement & Innuendo:adding facts to the statement
b. methods: pictures, satire, drama c. statements of opinion:
specific facts & express allegation of those facts 3. facts v.
opinion more broad the terms or statement less likely 4. Who can
defamed?a. individual: Any living person may be defamed b.
Corporation, Unincorporated Association, and Partnership: by
remarks as to its financial condition, honesty, integrity, etc. 5.
Reasonable person would have to understand 6. Publication
requirement is satisfied when there is a communication to a third
person who understood it.7. Single Publication RuleStatute of
Limitationsall copies are treated as one, deems when it is put for
sale, damages are still total effect on all readers8. Who may be
liable?a. primary publisher: any one who takes part in the
publicationb. republisher: who repeats the defamatory remarks c.
secondary publishers: vendors, had to know or should have know9.
Damages a. General or Presumed Damages: General damages are
presumed by law and need not be proved by the plaintiff. b. Special
damages: must prove that he suffered pecuniary losses loss of job,
prospective gifts/inheritance, business relationships10. 559.
Defamatory Communications DefinedA communication is defamatory if
it tends so to harm the reputation of another as to lower him in
the estimation of the community or to deter third persons from
associating or dealing with him11. Publication to 3rd party,
understand as defamatory of , allegation of falsity-must contain
factual allegation, damages-actual malice for punitives,
constitutional considerations-NY times12. Limited purpose public
figurespublic figures for a limited range of issues surrounding a
particular public controversy 13. Public Figuresindividuals who
have achieved such pervasive fame or notoriety that they become
public figures for all purpose and in all contextB. Libel 1.
defamatory statement recorded in writing or some other permanent
form. can be t.v or radio2. Damagesa. general damages: presumed by
lawb. minority position3. libel per se broadcast or written
publication of a false statement about another which accuses
him/her of a crime, immoral acts, inability to perform his/her
profession, having a loathsome disease (like syphilis), or
dishonesty in business. Such claims are considered so obviously
harmful that malice need not be proved to obtain a judgment for
"general damages," and not just specific losses.4. libel per quod
phrase that prefaces the recital of the consequences of certain
acts as a ground of special harm to the plaintiff.C. Slander1.
spoken defamation. It is to be distinguished from libel in that the
defamation is in less permanent and less physical form.2. Damagesa.
Special Damages Usually Required b. Slander Per SeInjury Presumed
i. Business or Profession: adversely reflecting on plaintiffs
abilities in his business, trade, or profession is actionable
without pleading or proof of special damage. statements like he's
dishonest or lack skillsii. Loathsome Disease: limited to venereal
disease and leprosy.iii. Crime Involving Moral Turpitude: is or was
guilty of a crime involving moral turpitude is actionable without
pleading or proof of special damagesiv. Unchastity of a Woman3.
568. Libel and Slander Distinguished1. Libel consists of the
publication of defamatory matter by written or printed words, by
its embodiment in physical form or by any other form of
communication that has the potentially harmful qualities
characteristic of written or printed words.2. Slander consists of
the publication of defamatory matter by spoken words, transitory
gestures or by any form of communication other than those stated in
Subsection (1).D. Public1. Public Officialsmay not recover for
defamatory words relating to his official conduct in the absence of
clear and convincing proof that the statement was made with actual
malice.2. Public FiguresActual Malice RequiredThe rule of New York
Times v. Sullivan has been extended to cover litigation where the
plaintiff is a public figure.3. (i) where he has achieved such
pervasive fame or notoriety that he becomes a public figure for all
purposes and contexts (e.g., celebrity sports figure); or (ii)
where he voluntarily assumes a central role in a particular public
controversy4. Actual Malicea. Test: knowledge the statement was
false OR reckless disregard as to its truth/falsityb. reckless: not
measured by a reasonable person standard or by whether a reasonable
person would have investigated before publishing. must be a showing
that the in fact (subjectively) entertained serious doubts as to
the truthfulness of his publication. 5. Private persona. have to
prove maliceb. do not have the same opportunities for rebuttal as
do public persons: more vulnerablec. involves a matter of public
concern, Gertz imposes two restrictions on private plaintiffs: (i)
it prohibits liability without fault, and (ii) it restricts the
recovery of presumed or punitive damages.d. Actual Injury: not
limited to out-of-pocket loss E. Defenses1. Consent2. Truth3.
Absolute Privilege a. not effected by showing actual maliceb.
Judicial proceedings: anything said in a casec. Legislative
Proceedings: federal/state legislator no requirement of reasonable
relationshipd. Executive Proceeding: govt executive official, has
to have some reasonable relationship e. Compelled
broadcast/Publication: f. Communication between spouses 4.
Qualified Privilege a. reports of public proceedings b. public
interest c. interest of publisher d. interest of recipiente. common
interest of publisher & recipientF. Cases1. If the meaning of
an article is capable of two interpretations, one being defamatory
and the other not, it is for the jury to determine the meaning of
the article based on all of the evidence. Belli v. Orlando Daily
Newspapers, Inc2. An 'interactive computer service qualifies for
immunity so long as it does not also function as an information
content provider for the portion of the statement or publication
claimed to be false, misleading or defamatory. Carafano v.
Metrosplash.com, Inc.3. The constitutional guarantees require a
federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct
unless he proves that the statement was made with actual malice
that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. New york times v
SullivanIX. Privacy1. Wrongsa. appropriation by defendant of
plaintiffs picture or name for defendants commercial advantage; b.
Intrusion by the defendant upon plaintiffs affairs or seclusion; c.
Publication by the defendant of facts placing the plaintiff in a
false light d. Public disclosures of private facts about the
plaintiff by the defendant A. Intrusion on Plaintiffs Affairs or
Seclusion Elementsa. Act of prying or intruding on the affairs or
seclusion of the plaintiff by the defendant; b. The intrusion is
something that would be highly offensive to a reasonable person;
and c. The thing to which there is an intrusion or prying is
private. 1. 652b (1977)One who intentionally intrudes, physically
or otherwise, upon the solitude or seclusion off another or his
private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.2. a. unreasonable intrusion upon
the seclusion of another ...; or b. appropriation of the others
name or likeness ...; or c. unreasonable publicity given to the
others private life ...; or d. publicity that unreasonably places
the other in a false light before the public....B. Publication of
Facts Placing Plaintiff in False Light Elements a. Publication of
facts about plaintiff by defendant placing plaintiff in a false
light in the public eye; b. The false light is something that would
be highly offensive to a reasonable person under the circumstances;
and c. Actual malice on the part of defendant where the published
matter is in the public interest. 1. publicity concerning the false
light facts; this requires more than publication in the defamation
sense. 2. A fact will be deemed to present plaintiff in a false
light if it attributes to him: Views that he does not hold, or
Actions that he did not take. 3. Highly offensive to a reasonable
person4. Actual Malice Necessary Where in Public Interest 5. 652E
One who gives publicity to a matter concerning another that places
the other before the public in a false light is subject to
liability to the other for invasion of his privacy, ifa. the false
light in which the other was placed would be highly offensive to a
reasonable person, andb. the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.C. Publication
of private facts elements a. Publication or public disclosure by
defendant of private information about the plaintiff; and b. The
matter made public is such that its disclosure would be highly
offensive to a reasonable person. 1. have to private facts, public
records do not apply2. 652d (1977)One who gives publicity to a
matter concerning the private life of another is subject to
liability to the other for invasion of privacy, if the matter
publicized is of a kind thata. would be highly offensive to a
reasonable person, andb. is not of legitimate concern to the
public.3. microphone in someones bedroom D. Appropriation
(famous)1. elements: Unauthorized use by defendant of plaintiffs
picture or name for defendants commercial advantage.2. 652c One who
appropriates to his own use or benefit the name or likeness of
another is subject to liability to the other for invasion of his
privacy.3. using it for commercial advantage/benefit4. using a
famous persons face to advertise your business when they did not
approve