Torts II Outline_Bisom-Rapp_Spring 2012

7/31/2019 Torts II Outline_Bisom-Rapp_Spring 2012

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Torts Final Outline 6/22/2012 8:42:00 AM

Torts II Outline

Thomas Jefferson School of Law

Professor Bisom-Rapp-Spring 2012

STRICT LIABILITY

When risk is brought unilaterally/unreciprocated risk

2 areas of Strict Liability (S/L)

1). Animals

2). Abnormally Dangerous Activities

Animals

Trespassing livestock

Fencing out Fencing in Strict liability

o No, strict liability where animals are on highway and strayonto adjoining parcel of land (nor if herd of animals like cows

stray out of fenced parcel) So tripping over snake is not strict

liability as it would have to be strangulation or bite etc No liability without fault

Dangerous Animals

Wild: Hold keepers of wild animals strictly liable (although harmmust be result of the specific danger said wild animal presents).

Domestic: Must prove D had scienter (scienter means owner knowsor should have known dangers an animal presents).

o Domestic means by custom animal provides service/benefit tomankind

Abnormally Dangerous Activities

Rylands v. Fletchero Exchequer court (trial court) ruled for Do Exchequer chamber (intermediate court) ruled for P


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o House of Lords ruled for P*Not responsible for first restatement mentioned in supplement

Ryland v Fletcher (cont)Blackburn- If D keeps something on land likely to do mischief if it escapes,

and it escapes, D is liable even if not at fault

Cairns: Where non-natural use of land causes harm, D is strictly liable (like

minx in ryland case)

Rest. of Torts 2nd

Factors Considered for Strict Tort Liability for activities (Judges assess)

Existence of a high degree of risk or harm Likelihood that the harm will be great Inability to eliminate the risk by exercise of reasonable care (most

important)

Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on

extent to which its value to the community is outweighed by its

dangerous attributes

Restatement of Torts 3rdAn activity is abnormally dangerous if:

The activity creates a foreseeable and highly significant risk ofphysical harm even when reasonable care is exercised by all actors

The activity is not one of common usage4 Step approach to Strict Liability Problems

Determine if facts within a class of SL animals or activities Determine if the harm suffered was within the inherent risk Assess proximate cause Defenses

Defenses to strict Liability Claims

Contributory negligence is NOT a defense to SL claims but thefollowing are defenses:


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1). Harm caused by negligence of carefully selected IC ( non-delegable duty

of care)

Repairing dangerous instrumentalities

Precautions required by statute

Inherently dangerous activities2). Harm caused by careful IC engaging in abnormally dangerous activity

3). Illegal activities

Joint Enterprise and Vicarious Liability

Rest. of Torts 2d sec 491 provides 4 factors that establish joint enterprise

An agreement among members of the group

A common purpose to be carried out

A community of pecuniary (money making) interest

Equal right among the parties to control direction of the enterprise

Bailments

Where owner is present

Some jurisdictions assume right of control so there is VL

Other jurix require proof of agency relationship to impose VL

Where owner is not present

Family purpose/car doctrine embraced by the jurisdictions common law

(Malchose case) ORAutomobile consent statute adopted by the legislature

PRODUCTS LIABILITY

1) Negligence

Duty owed to foreseeable plaintiff

Breach- looking for unreasonable conduct/carelessness in design,

manufacturing, packaging, warning, shipping, testing, etc

Causation- factual and proximate

Damages- physical injury and property damage NOT pure economic loss

Defenses: contributory negligence, comparative fault, assumption of risk


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2) Warranties

Express warranty

Is the plaintiff proper (some jurix limit warranty protection to household

while most extend to any natural person)

Is defendant proper (most jurix extend expresse warranty liability to allcommercial sellers)

ELEMENTS:

An assertion of fact -(material representation about productscomposition, durability, performance, safety)

Basis of the bargain - (statement must precede or accompany thesale) presumed by UCC buyers reliance-Did buyer justifiably rely of

assertion of facts

Causation- failure of product to have promised quality caused theharm

Damages personal injury, property damage, pure economic lossExpress Warranty and Implied Warranty Privity Issues

Protected Ps- (horizontal privity issues)

UCC 2-318 provides 3 alternatives indicating who can sue on the warranty

and what kind of damages he can get

Defendants liable(vertical privity issues)

UCC limits liability to merchants but many jurix expand liability to all sellers.

Defenses

Lack of reasonable notification Within reasonable time of discovering breach, P must notify seller

or suit barred

Limitations of liability by D- must be reasonably consistent with thewarranty, not unconscionable (D may NOT disclaim an express

warranty)

Comparative negligence Assumption of risk

Implied Warranties

IWs for Merchantability


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A promise that the product is fit for the ordinary purposes for which it is

used

Elements

Merchants Who sell goods not fit for ordinary purposes (breach) Are liable to protected Ps If breach of implied warranty causes Damages (per. Injury, prop damage, pure economic loss)

Implied Warranty of Fitness for Particular Use

All Sellers Who sell goods not fit for a purchasers particular use Where the particular use is communicated to D and purchaser relies

on Ds expertise (reliance)

The breach causes Ps damages (per injury, prop damage, pure ecoloss)

Defenses (for implied warranties)

Lack of reasonable notification Within a reasonable time of discovering breach, P must notify seller

or suit will be barred

Limitations of liability by D- must be reasonably consistent with thewarranty, no unconscionable (D may not disclaim express warranty)

Disclaimers of Liability sell as is Comparative negligence Assumption of risk

Restatement 2d torts 402A

1. Commercial seller (merchant) who sells a product

2. Defective condition that is unreasonably dangerous

A) Manufacturing defects B) Design defects C) Warning and instruction defects

3. Physical injury and property damage to user/consumer

4. Where product reaches user/consumer without substantial

change


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2. Design Defects Defective Condition that is Unreasonably dangerous

Manufacturing Defects of Product Liability in Tort (Rest. 3d sec 2)

Contains a manufacturing defect when:o the product departs from its intended design even though all

possible care was exercised

o Is defective in design when the foreseeable risks ofharmcould have been reduced or avoided by the adoption of

a reasonable alternative designand the omission.renders

the product not reasonably safe

o Is defective because of inadequate warnings or instructionswhen the foreseeable risks of harmcould have been reduced

or avoided by the provision of reasonable warnings or

instructions.

Manufacturing defects (main rule)o Rule: A product has a manufacturing defect when it departs

from its intended design and the departure makes the product

more dangerous

o Defective condition that is unreasonably dangerous)o Applying the rule: Simply compare the products design

against the allegedly non-conforming unit of the product

which injured P.

2. Design Defects (cont) of S/L in Product Liability-

4 Rules

1. Hindsight risk/utility 2. Ordinary risk/utility 3. Consumer expectations 4. Hybrid approach (CA approach) Design defect Rule 1Dean Keetons approach

o Rule: 1. Hindsight risk/utility: Impute knowledge of risksand useful aspects of product to D using knowledge available


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at time of trial (instead of knowledge available at the time the

product was marketed)

Reasons Product Liab is Strict Liability

o 1. In design defect cases, knowledge of product risks is oftenimputed to D even when D didnt have actual knowledge

o 2. Some courts limit or will not apply the defense ofcontributory negligence in products cases so they want to

distinguish b/w products cases and negligence

o 3. Some courts feel negligence is too forgiving of smallmanufacturers

o 4. The liability of non-manufacturing sellers is strict! Design defect Rule 2Dean Wades approach

o Risk utility: Balance 7 factors if the risk of the product asdesigned is greater than the utility of the product as

designed, the product has an unreasonably dangerous design

defect

o Knowledge base is time the product is marketed 7 Risk-utility Factors (same factors for hindsight & ordinary

utility tests)

1. Usefulness and desirability of product 2. Safety aspects of the product (likelihood and severity of injury) 3. Availability of safer substitute product 4. Ability to improve products safety without impairing its

usefulness or making it too expensive

5. Users ability to avoid risk by being careful when using product 6. Awareness of danger due to general knowledge or warnings 7. Feasibility of D spreading loss, getting insurance Design Defect Rule 3-Consumer Expectations

o Consumer expectations is product dangerous beyond that which ordinary

consumer would consider

Design Defect Rule 4- Hybrid approach


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o Hybrid Approacho Product has design defect if:o 1. P shows product failed to perform as safely as an ordinary

consumer would expect

o 2. P shows products design proximately caused injury and Dfails to prove benefits outweigh risk

Warning defects

Rule: P must show that manufacturer knew or should have knownof the risks associated with product.

Rule for other Ds: P must show that retailer knew or had reason toknow of the risks. Considered a lesser standard. Product Liability in

Tort

Warning defects some sub-rules

1. State of the art relevant to know-ability 2. Obvious hazards no need to warn 3. Sophisticated users no need to warn 4. Learned Intermediary rule 5. Post-sale duty to warn

3.Damages-Physical injury and property damage to user/consumerPure economic loss not available

Physical injury damages available

Property damages available (harm to product itself not always considered

property damage)

Economic loss that flows from physical injury or property damages is

available

Rest 3d Sec. 21 Damages

Harm to person or property includes economic loss if such loss is caused by

harm to:

Ps person

The person of another when the harm interferes with Ps interest that is

protected by tor law

The Ps property (missed some of slide here)


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4. Where product reaches user/consumer without substantial

change

The defect indentified in the second element must be the proximate cause of

Ps injuryThe defect must have existed when the product left the Ds control (ex in Rix

case)

Defenses to 402A claims (S/L Produc liability)

Comparative fault is defense in most jurisdictions (reduces recovery)

Assumption of risk may bar suit

Unforeseeable misuse may bar suit

DEFAMATION

(7 elements)- For Exam First Categorize type of plaintiff

Defamatory Statement About the plaintiff False Statement Fact v. Opinion Published Damages State of Mind

1. Defamatory Statement-statement is one that diminished the respect,

good will, confidence or esteem in which the P is held OR excites adverse or

unpleasant feelings about the P. (Ex. Being characterized as a liar, especially

with respect to ones engagement in sexual affairs, would satisfy this

standard)

2. About the Plaintiff-A plaintiff must demonstrate that a reasonable

person would understand defamatory statement was referring to that

plaintiff. If the defamatory statement does not refer explicitly to the plaintiff,


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the plaintiff would likely need to plead colloquium, extrinsic evidence that

connects the plaintiff to the statement.

Inducement- Where statement is not defamatory on its face, Pmust plead extrinsic facts-background info called the inducement.

o Ex. P was Mormon and statement said she drank beer(wouldnt be defamatory for normal person but could be to

Mormon)

Innuendo- where the statement is not defamatory on its face, Pmust explain why the statement, along with the inducement,

injures Ps reputation. This is innuendo

Rule for Groups:

P must establish that a reasonable person would understand thedefamatory statement referred to the P

o Where groups is large, none can sueo Where group is small, each member can sueo Problems occur when statement refers to some of group but

not all

Colloquium: Where statement does not explicitly refer to P, P must

plead extrinsic facts, known as colloquium, to demonstrate that areasonable person would understand the statement as referring to P

3. False Statement-

Rule: statement must be substantially untrue Application: Where details between truth and the statement differ,

ask whether the essential sting or thrust of the defamatory

communication is the same as what actually happened, Where

there is a difference between the statement and what actually

happened, falsity is established.

4. Fact v. Opinion- example: calling someone a liar could be construed as a

statement of opinion. Yet, the Supreme Court in Milkovich held statements

of opinion actionable to the extent they imply an assertion of objective fact.


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A reasonable argument could be made if statement is based on implied

knowledge, which might be deemed actionable

Opinion is actionable in a defamation suit if:

The opinion implies false, defamatory facts; e.g. I think Bob is an

alcoholic is a statement that implies known, false, reputation- harming factsabout me.

The speaker offers an opinion as true when it is not an opinion actually

held by the speaker. In other words, it is a false opinion; e.g. I thought the

food in Restaurant X was disgusting but the speaker loved the food!

Opinion is not absolutely protected by 1st Amendment

Opinion is actionable- when opion implies objective facts

And when its someone elses opinion.

5. Publication

Rule- Statement must be conveyed and understood by at least one person

other than the P or D/ communicated to a third person who reads and

understands it.

Sub-Rule: Primary Publisher: Each entity taking part in making theinitial message is charged as a primary publisher (author, editor,

newspaper, tv station)

o Must take place via an intentional or negligent act. Basically,D must intendfor 3rd person to read/hear it OR be negligentin allowing 3rd person to hear/read

Sub Rule 2: Secondary Publisher: Those who transmit the messagemore passively are secondary publishers and are liable only if they

know or should know of defamatory matter (bookstores, libraries,

magazine stand)

o Those who transmit the message more passively aresecondary publishers and are liable only if they know or

should know of defamatory matter (bookstores, libraries,

magazine stand).

Communications Decency Act of 1996 230(c)(1)- No provider or user of an

interactive computer service shall be treated as the publisher or speaker of

any info provided by another information content provider.


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Act grants immunity to online companies when info is provided bynon-company/another another party (ex. match.com vulgar

German guy posting lady is horny on her profile)

6. Damages General Damages: Presumed by law and need not be proven.

Provides compensation for general injury to reputation (ex.

Humiliation, wounded feelings, loss of friends).

Special Damages: Must be proven. Covers pecuniary loss as aresult of defamation (ex. Lost job, loss of prospective gift,

destruction of advantageous business relationship

Types of Damages

1. Libel per se (defamatory on its face/obvious like Bob packsfudge) and slander per se (crime of moral turpitude, in

business/socially; unchastely- slander that does not require special

damages be proven) could render damagesa (case would be onefor libel if written; communicated by sight (i.e., newspaper

2. Slander- requires special damages (i.e., wounded feelings,humiliation) be proven to get damages (like spoken word/not

written) Gen damages presumed after special damages are proven 3. Libel per quod (not defamatory on its face) courts are split on

whether special damages need be proven. General damages

presumed by 2nd restatement

Private Figures Damages (Gertz)

When no showing of actual malice a private P defamed on a matter of public

concern may NOT recover presumed or punitive damages. Such a P may

only collect for actual injury

Actual Injury: Proven damages not limited to out-of-pocket loss,and covering impairment of reputation, humiliation, mental

anguish.

If not matter of public concern though, no actual malice need be proven to

get damages-Dun Bradstreet v Greenmoss Builders


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Matter of Public Concern: Speech deals with matters of public concern when

it can be fairly considered as relating to any matter of political, social, or

other concern to the community. Snyder v. Phelps

7. State of MindRule: (for public officials, public figures, candidates for public office)

False statement made with actual malice; that is, with

knowledge that the statement was false OR acted with reckless disregard as to its truth or falsity.

o Reckless Disregard- D subjectively entertained serious,serious, doubts about the truth of a statement

o The test is subjective and requires circumstantial evidence(that is clear and convincing-between kinda sure and

beyond reasonable doubt) to show D knew his statement was

bullsh$t. Carelessness isnt enough has to be RECKLESS

Sub Rule: (Actual Malice) Deliberate alteration is not equivalent

to actual malice unless the alteration results in a material change in

the meaning conveyed by the quote (NY magazine case- when

reporter publishes story of interview and put unquoted statements

in quotes. P used tape recording to show none of the quotes were

taped and the court said those quotes materially altered what Pactually said).

Determining who qualifies as Public official

Whether P is government employee who has or appears to havesubstantial responsibility for or control over government affairs. If

yes, P is public official.

All purpose public figures: people who have reached pervasivefame like Tiger Woods, Brad Pitt, Oprah, and even Snookie and Kim

Kardashian.

Limited public officials (3 factor test)o Must be a public controversy/issue publicly debated that is

serious

o Typically P must thrust himself into the controversy or publicissue (aka assumption of risk)


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o The defamatory communication must concern the issuesrelated to the public issue they are/were involved in

Public P defamed on matter of public concern must prove actual malice

for state of mindPrivate P defamed on matter of public concern must prove at least

negligence for state of mind

Falsity

Rule: the statement must be substantially untrue

Private plaintiff must prove falsity at least where a private P is defamed on a

matter of public concern (P must prove falsity too).

Private P concerning matter of Private concern Supreme Court has not ruled

yet. Almost all states require negligence be proven.

Private on Private still open issue

US Constitution 1st Amendment relation to Defamation

Rule (from 1st Amendment): Congress shall make no law abridging the

freedom of speech, or of the press.

Sub-rule:Through the operation of the 14th Amendment, the FirstAmendment binds not only the federal government but also the

states

Sub-rule 2:1st Amendment claims require state action; privateactors not subject to restrictions.

For States: So long as they do not impose liability without fault, the states

may define for themselves the appropriate standard of liability for a

publisher.of defamatoryfalsehood injurious to a private individual.

Timeline info of Defamation

1600s- no fault for defamatory statements

1700s- only if it was done with malice/out of spite

1900s- malice as matter of law (implied the hateful intent) malice in fact-

(proved by defeating defense)


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1964- Back to no fault (no need to prove carelessness or intent)

Defamation defenses

Two important defenses:

1. Consent: An absolute defense so long as it is not exceeded. 2. Truth: Even though public Ps andprivate Ps defamed on a matter

of public concern must prove falsity, substantial truth, if proven by

the D, is an absolute defense.

Absolute Privileges

Participation in government processeso Judicial proceedingso Legislative proceedingso Executive proceedings

Compelled broadcasts TV and radio stations protected whereelectoral equal access laws mandate broadcast of a candidates

response

Communications between spouses Third party cannot sue wherepublication is b/w spouses

Conditional/Qualified Privileges 3 Types

1. The interest privileges 2. Reports of public proceedings 3. The privilege of fair comment

The Interest Privileges

1. Protection of publishers own interests 2. Protection of a third partys interests 3. Protection of common interests 4. Public interest Ways of losing the interest privileges

o 1. Where D has no reasonable basis for believing thestatement is true (P proves D acted with reckless disregard

due to Const. standards);

o 2. Where Ds statement was not solicited;


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o 3. Where Ds statement was not made to a proper person;o 4. Where D excessively published the statement;o 5. Where D used inflammatory words;o 6. Where D had improper state of mind

Reports of public proceedings

There is a qualified/conditional privilege to report on publicproceedings, public records, official acts but the report must be

verbatim OR an accurate and fair (disinterested) summary.

To defeat the privilege, P must show fault by D in failing to makethe report accurate and fair.

Privilege of fair comment

D may offer criticism on matters of public concern, including theactivities of public officials/figures and on subjects scientific,

artistic, literary, and dramatic.

The criticism must be comment or opinion not a misstatement offact. It must be fair and based on true facts.

Interpret the privilege by referencing Milkovich

MISREPRESENTATION

Three causes of action (intentional, negligent, strict liability)

Five Elements

1) Ds misrepresentation of a material fact

2) State of mind (various among 3 causes of action)

3) Ds intent to induce Ps reliance (varies among cas)

4) Ps justifiable reliance on the misrepresentation

5) Damages

Sub-Rules

Material: 2 ways to prove

Info is material if RPP would attach importance to it when making a decision

to enter transaction


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Info is material if D knows or should know this particular P considers the info

to be important

Fact: The info must be a fact not opinion

Misrepresentation: Words or actions that create a false impression, cover up

the truth, or remove an opportunity to discover the truth (active, failure todisclose, half truths).

1) Misrep of Material fact (varies by cause of action)

3 Ways Misrepresentation Occurs (of Material Fact)

Active Misrepresentation- Can be oral written, or based on specific actions

Failure to disclose when duty to disclose

Old Common law: caveat emptor- no duty

Exception- special relationship between P and D

Modern Trend: duty to disclose defects that seriously affect land use and

which buyer could not reasonably discover

Half-Truths

Partial disclosure that is misleading is a misrepresentation

Old Common Law- no duty to speak but once D does, must make full, fair

disclosure

2) State of mind (varies by cause of action)

Intentional Misrepresentation (aka fraud or deceit)D knew misrepresentation was false

D acted with reckless disregard as to truth or falsity

D consciously aware of lack of knowledge

Negligent Misrepresentation

Duty- look for special relationship or implicit agreement to exercisecare in investigation or communication info

Breach- failure to be careful in providing info Strict Liability (rare) Applies to sale, rental, or exchange Theory reserved for parties in unequal positions often a contract is

involved.

3) Intent to Induce Ps reliance (varies by cause of action)

Rule: D must intent to rely on misrepresentation as true


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1). Face-to-face transaction: easy to demonstrate intent to induce for fraud,

negligent misrep., or Strict liability misrep

2). Where P encounters misrep indirectly, however, rules for the three

causes of action vary.

1)Intentional Misrep (fraud/deceit)RULE: D intended to induce reliance on the part of any member of the

expected affected class the class D has reason to expect will rely at the

time the misrep was made

2) Negligent Misrepresentation

Quasi-Privity (NY) ruleo D must be aware report will be used for a particular purposeo D must know that a specific party intends to rely on reporto There must be linking conduct between D and P

Foreseeability (WISC) ruleo D intended to induce Ps reliance if Ps reliance is a

foreseeable consequence of Ds negligence

Restatement 2d sec 552- D intends to induce Ps reliance to aknown, intended, and foreseen class of beneficiaries

o Where: P is a person or limited group of persons for whose

benefit D intends to supply info OR knows his/her client

intends to supply it P relies on the info in a transaction D intends to

influence or knows his clients intention or in a

substantially similar transaction

4) Justifiable Reliance

General Rule: Two intertwined concepts

P must prove he/she relied P must prove that the RPP would have relied

Exceptions:

No need to prove RPP would rely where D knows P is gullible,superstitious, ignorant, etc

P may be held to standard higher than RPP if P has specialknowledge or expertise

Related to general rule/sub-rules


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Ps duty to investigateo P has NO duty to make inquiry or investigate the truth of an

apparently reliable statement made by D

o P has a duty to investigate IF circumstances would put a RPPon notice that he is being deceived

Exception: Where the P is not held to the RPP standard b/c he is afool, likely no duty to investigate if circumstances are

fishy/questionable

Fact/Opinion Reliance

Rule: The RPP may justifiably rely on statements of fact but not of opinion

Test for determining fact or opinion:

For Facts: Ask how the statement would reasonably be understood.Typically factual statements are objective and subject to being

proven true or false.

Opinions are subjective (i.e., Beauty is in the eye of the beholder)Exceptions to the rule of Fact/opinion

A RPP may justifiably rely on opinion when:

D possesses superior knowledge unavailable to P D is in a special relationship with P D has special expertise D appears to be an independent authority but actually has an

interest in the transaction

Where statement about law is fact-based, P may justifiablyrely upon it

o Ex. The 18thamendment was repealed yesterday, is treatedas a fact-based statement

The plumbing in the house complies with the city code is also treated as

fact statement if the actual state of the plumbing is not disclosed to P

Where statement of law is opinion-based, treat it like other

statement of opinion.

Ex. your actions violate the 7thamendment is treated as an opinion- a

legal conclusion based on facts known to P and D

1. Prediction is an opinion-like statement of belief about what will

happen in the future.

In general, one may not justifiably rely on Ds prediction of future events.


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2. Intention is a fact-like statement regarding

someones current state of mind or present plan to take action in the

future.

In general, one may justifiably rely on Ds statement of intention.

5. Damages

Out of pocket: P is given the difference between the value of whats/he has parted with and the value of what s/he has received.

[PAID- RECEIVED] (English rule and Minority in US)

Benefit of the bargain: P is given the difference between thevalue of what s/he was promised and the value of what s/he has

received. [PROMISED RECEIVED] (Majority in US)

Defenses for Misrep

1. Fraud

Assumption of the risk will bar suit2. Negligent misrepresentation

Assumption of the risk will bar suit Contributory negligence will bar suit Comparative fault will reduce damages

3.Strict liability misrepresentation

Assumption of the risk will bar suit Comparative fault will reduce damages

NUISANCE

Public v Private Nuisance

State of mind: Both can be based on any state of mind (intent,negligence, S/L) and state of mind is only relevant to determine

damages and defenses

Both involve a substantial, unreasonable interferencePublic Nuisance

Rule:A public nuisance is a substantial unreasonable interference with a

right common to the general public.


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Examples: right to health, right to safety, right to peace, right tocomfort (subjecting public to loud parties, keeping explosives in

house, etc)

3 ways to demonstrate unreasonable interference P can show substantial interference with public right P can show Ds conduct violates a statute or regulation P can show Ds conduct is likely to produce permanent or long

lasting effect and is substantial determent to the public.

Standing to bring suit

Government officials clearly have standing to bring suit to vindicateunreasonable interference with public rights.

A private party, in order to have standing to sue, must suffer harmof a kind different from that suffered by other members of the

public.

Private nuisance

Rule: A private nuisance is an interference with the Ps right to useor enjoy her/his property.

o Examples of interference: a physical condition; the health ofthe P; Ps comfort or convenience; Ps peace of mind; threatof future injury.

o Unlike trespass, nuisance does not involve interference withPs possessory interest. Nuisance does not involve any sort of

physical entry onto real property.

Permanent v. Continuing Private Nuisances

(italic part here not relevant to EXAM)

o Permanent nuisance cannot be abated (ended) because it hassocial value or it has caused irreparable damage. (No

injunction available.)

o Continuing nuisance can be abated (ended). (Both injunctionand damages are available. P can bring successive suits until

it is abated.)


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Private Nuisance: Elements

1. An intentional, negligent or strict liability act The act causes a substantial and unreasonable interference with Ps

use or enjoyment of property

o Substantial = a RP would take offense (beware of sensitiveuses of land)

o Unreasonable = For damages: balance equities OR more than a P should

bear without compensation

For injunction: balance the equitiesFactors for determining unreasonableness

Is the interference more than P should bear without compensation?

Factors to Examine:o Extent & duration of the interferenceo Nature of the interferenceo Social value of use to which P puts her/his propertyo Suitability of Ps use of property to that localeo The burden on P compared to D to bear the loss of shift it to

others

Relationship between zoning and determining unreasonablenessWhere D complies with zoning rules:

o Some courts treat as proof that Ds interference is notunreasonable (in location or operation)

o Some courts treat zoning as relevant but not dispositive andmay nevertheless find Ds interference unreasonable (in

location or operation)

o Some courts treat as proof Ds interference is notunreasonable in location but allow consideration of the claim

on operation (see e.g. Winn-Dixie)

Unreasonableness: Factors for balancing the equities

To determine the equities examine:

Character & extent of damage inflicted or threatened Good faith or intentional misconduct of D


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Ds efforts to avoid harming P Financial investment of P as compared with D Economic hardship resulting if judicial relief is granted or denied Publics interest inhaving Ds activity continue Who, P or D, was there first (aka coming to the nuisance theory)

Defenses for public or private nuisance

Intentional nuisance: Assumption of the risk (sometimes calledconsent)

Negligent nuisance: Assumption of the risk; contributorynegligence; comparative fault

Strict liability nuisance: Assumption of the risk; comparative fault(to reduce damages)


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Torts II Outline_Bisom-Rapp_Spring 2012

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