Torts, Strict Liability & Products Liability PDF

Torts What is a Tort?  A tort is a breach of duty that causes injury or damage to a person(s) or property.  Tort law is designed to compensate those who have suffered a loss/injury.  Kinds of Torts  Intentional Torts  Defamation, Invasion of Privacy, Business Torts  Uninten...

Torts What is a Tort?  A tort is a breach of duty that causes injury or damage to a person(s) or property.  Tort law is designed to compensate those who have suffered a loss/injury.  Kinds of Torts  Intentional Torts  Defamation, Invasion of Privacy, Business Torts  Unintentional Torts (Negligence)  Strict Liability, Products Liability Damages  Types of damages available:  Compensatory Damages  Special Damages  General Damages  Punitive Damages  Nominal Damages Damages – Types  Compensatory Damages: To compensate plaintiff for harm suffered; must be foreseeable, certain, unavoidable  Special: Quantifiable dollar loss suffered (proven at trial)  Include economic losses such as medical bills, lost wages/profits, and property damage  General: Damages not quantified in monetary terms (i.e., no invoice or receipt as with special damages)  Include pain and suffering, emotional distress Damages – Types  Punitive Damages: (aka “exemplary damages”)  Purpose is to punish defendant, rather than compensate plaintiff(s)  In most jurisdictions punitive damages are recoverable in negligence, but only if plaintiff can show defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless)  Due Process Limit: Can’t be grossly excessive when compared to compensatory amount  Nominal Damages: Plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses  Can be as low as $1 What is Intent?  Intent: Desire that a result will occur or knowledge to a substantial certainty that a result will occur.  Variations:  Children  Mental Illness  Transferred Intent  Between Victims  Between Torts Intentional Torts  To Person  To Property  Assault  Real Property  Battery  Trespass to  False Land Imprisonment  Personal Property  Intentional  Trespass to Infliction of Chattles Emotional  Conversion Distress **Please note that some of these torts may cover topics or situations that may be difficult or sensitive to some students** Assault  Rule: Intentionally placing another in reasonable apprehension of an imminent harmful or offensive touch without consent or privilege.  Physical contact not required  Words alone are not enough, defendant must have actual ability to inflict harm  Plaintiff must have awareness Battery  Rule: The intentional harmful or offensive touching of another, without consent or privilege.  Trivial touching of person or clothing is sufficient  Awareness is not necessary False Imprisonment  Rule: The intentional physical or psychological confinement of another, within fixed boundaries, for any period of time, without consent or privilege.  No reasonable means of escape  Awareness of confinement or physical injury Intentional Infliction of Emotional Distress  Rule: Conduct of an extreme and outrageous nature which is intended to cause and which does cause severe emotional distress.  Beyond the bounds tolerated by civilized society  Distress must be lasting, not temporary or minor  No transferred intent Trespass to Land  Rule: The intentional entry upon land in possession of another without consent or privilege.  Requires some tangible entry  Mistake is no defense Trespass to Chattels  Rule: Minor intentional interference with the personal property of another without consent or privilege.  Chattel: item of personal property  Mistake is no defense  Actual minor damage or interference Conversion  Rule: Major intentional interference with the personal property of another without consent or privilege.  Mistake is no defense  Must have some major interference  More than minor or temporary  damaged forever, taken  Damages: Fair Market Value at the time of conversion Defamation  To establish a prima facie case:  Plaintiff must prove the matter was false and defamatory, published intentionally or negligently by defendant to a third person, that the third person understood the defamatory imputations applied to plaintiff and plaintiff suffered damages as a result of the defamation. Defamation – Common Law  1. False Statement  Burden of proof on plaintiff to prove falsity  2. Defamatory  Must harm or injure plaintiff’s reputation  3. Published  Must be heard by at least 1 third person  Intentional or negligent OK  4. About or Concerning Plaintiff  Extrinsic facts OK  5. Caused Damage Defamation – Damages  Plaintiff needs to prove damages  Type of damages to prove depends on type of defamation plaintiff claims:  Slander  Slander Per Se  Libel Defamation – Slander  Slander is oral defamation  Plaintiff must prove actual special damages (pecuniary)  Once special damages are proven, general damages are also recoverable Defamation – Slander Per Se  Slander Per Se is oral defamation that concerns:  Business / Profession  Serious crime  Loathsome disease  Unchastity  Plaintiff does not need to prove actual special damages, general damages are presumed Defamation – Libel  Libel is written defamation  Plaintiff does not need to prove actual special damages, general damages are presumed  Defamation – Constitutional  If the defamation includes a “public” or “newsworthy” ingredient (person or event), must consider constitutional requirement of actual malice to recover damages  Actual Malice (New York Times v. Sullivan)  Rule: Knowledge of falsity or reckless disregard for the truth  Types of damages depend on type of suit Public P v. Any D  Public Figure  Pervasive/ Achieved Fame: Famous or holds public office  Limited Purpose: Public figure for one purpose, private figure for other issues  A public figure cannot base a defamation suit unless there is proof the defendant acted with actual malice  Higher standard of proof (“Burden of Proof”) required for public figure plaintiffs Private P v. Any D – Matter of Public Concern  Common law negligence is sufficient for actual (special) damages  Actual Malice is required for presumed (general) damages Private P v. Private D – Matter of Private Concern  Common law negligence is sufficient for actual (special) damages and presumed (general) damages  Invasion of Privacy  False Light (similar to defamation)  Widespread publication of false info that is highly offensive to a reasonable person (vs. defamation where it injures reputation and need not be widespread)  Public Disclosure of Private Facts  Publication of private non-newsworthy facts (not necessarily false)  Commercial Appropriation of Identity  Unauthorized use of P’s name/likeness for commercial purposes  Intrusion into Private Affairs  Injection into area a reasonable person would consider private Famous Cases  Defamation:  Depp v. Heard (filings only)  Wilson v. Bauer Media Group (Australian case but still illustrative)  Commercial Appropriation of Identity:  White v. Samsung  O'Bannon v. NCAA Fraudulent Misrepresentation  False statement of material fact  Scienter: Knowledge of falsity or reckless disregard for the truth  Intent to induce reliance on the misrepresentation  Justifiable reliance by the deceived party  Causes actual damage Business Torts – Intentional Interference with Contract  D must interfere with an existing K between P and a third party  D must know of existing contract  D acts to induce breach of contract or make performance difficult  Actual breach  Resulting in financial loss Business Torts – Intentional Interference with Prospective Business Relationship  No contract yet  D must know of the prospective advantage P is seeking  Acts solely for the purpose of interfering  Uses improper/predatory means The Tort of Negligence  Negligence is an unintentional tort that causes actual harm.  Rule: A defendant may be liable to a plaintiff for negligence if it can be determined that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the plaintiff suffered damages which were actually and proximately caused by the defendant’s breach. Negligence  1. Duty  Standard of Care  2. Breach  3. Causation  Actual Cause  Proximate Cause  4. Damages  Duty  Ask: Did the defendant have a legally recognizable duty to the injured party?  General Rule: A duty of reasonable care is owed to all foreseeable plaintiffs (Palsgraf v. Long Island Railroad Company)  “Reasonable” is determined by the Standard of Care  Standard of Care  General Test: Reasonable Person Test  Reasonable Person Test: Looks at how a typical person, with ordinary prudence, would act under certain circumstances  Other Standards of Care  Adults with disabilities are held to the reasonable person test with their disability taken into consideration  Children are judged by age, intelligence, and experience  Professional Standard of Care Professional Standard of Care  Professional Standard of Care: Professionals such as physicians, attorneys, etc. are measured by standards in the profession.  Ask: Did the defendant act as an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would have under the same or similar circumstances?  Established through expert testimony Duty — Special Duties  Special Duties (Common situations):  Violation of Statute  Omission to Act  Landowner / Occupier Duty – Violation of Statute  Majority: Negligence Per Se  Duty is automatic when a statute is violated (i.e. statute adopted as standard of care) if three conditions are met:  1. Intent of the legislature  2. Class of persons to be protected  3. Type of injury suffered Duty – Omission to Act  In general, no duty to go to the aid of another in an emergency unless:  Special relationship between the parties  Parent/child, employer/employee, common carrier (transports goods/people)  Duty to warn: Tarasoff (narrow)  Injured by instrumentality under defendant’s control  Statutory duty to act  Duty – Landowner / Occupier Who is the Natural Artificial Activities Plaintiff? Conditions Conditions Outside the No Duty Reasonable Reasonable Premises Care Care Unknown No Duty No Duty No Duty Trespasser Known No Duty Warn or Make Reasonable Trespasser Safe Known Care Dangers Licensee Warn or Make Warn or Make Reasonable (social guests, Safe Known Safe Known Care police) Dangers Dangers Invitee Reasonable Reasonable Reasonable (public, Care Care Care business) Breach  Ask: Did the defendant breach the duty owed through the standard of care by exposing others to a risk of harm?  General Test:  Plaintiff must have proof of what happened and  Must show the defendant acted unreasonably (breached the standard of care)  Alternative Theory: Res Ipsa Loquitor  Breach – Res Ipsa Loquitor  “The thing speaks for itself”  The breach is so obvious it doesn’t require further explanation  Used when only know the result, there is no evidence of what actually happened  Requires Three Elements:  1. The accident/injury does not normally occur in the absence of negligence  2. Instrumentality which caused plaintiff’s injury must be in defendant’s exclusive control  3. Plaintiff must not have contributed to his/her/their own injury Causation  Actual cause: Defendant’s actions must be the cause in fact of plaintiff’s injury +  Proximate Cause: Looks to see if there is any reason defendant should be relieved of liability (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?)  Causation – Actual Cause  In general: “But For” Test  “But For” Test: Take away defendant’s act, if injury still occurs, defendant’s act is not the “but for” cause of the injury  Ask: But for defendant’s actions, would this injury still have occurred?  Multiple tortfeasors/defendants?  Other Tests Causation – Actual Cause  Concurrent Tortfeasors: Separate negligent acts occur and plaintiff would not have been injured without the concurrence of both  Joint Tortfeasors: Several defendants jointly engaged in negligent conduct  Each defendant is liable even if only one inflicted injury  Successive Tortfeasors: Defendants act independently but cause successive impacts to plaintiff resulting in a single indivisible injury  Causation – Actual Cause  Substantial Factor Test: Plaintiff sustains an injury resulting from negligent conduct of multiple tortfeasors. Even if the conduct of each is not the “but for” cause of the injury, both are a substantial factor.  Alternative Liability: Insufficient facts as to which of several tortfeasors caused the injury, both defendants could not have the caused the injury, and it is impossible to prove which defendant’s act caused the injury.  Shifts burden of proof to each defendant to show each’s negligence was not the actual cause of the plaintiff’s injury (Summers v. Tice: two rifles, one man gets shot, don’t know which gun) Causation – Proximate Cause  Ask: Is there any policy reason why defendant should be relieved of liability for the injury? (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?)  Direct Cause  No intervening act  Foreseeable result?  Indirect Cause  Some intervening act occurred  Dependent Intervening Act  Independent Intervening Act Causation – Proximate Cause  Dependent Intervening Act: Normal response created by defendant’s negligent act  Effect: won’t cut off defendant liability unless it is abnormal  Rescue forces, reaction forces, medical malpractice  Independent Intervening Act: Abnormal response created by defendant’s negligent act; may have occurred regardless of defendant’s negligence  Effect: if result is foreseeable, defendant still liable; if result is unforeseeable (“superseding act/cause”), can cut off defendant’s liability  Damages   Remember, a plaintiff can only recover damages under negligence if he/she/they have suffered actual harm  Types of damages available:  Compensatory Damages  Special Damages  General Damages  Punitive Damages  Nominal Damages Defenses to Negligence  Basic Defenses (trial/pre-trial mechanisms):  Denial Defense  Statute of Limitations  Failure to Mitigate Damages  Affirmative Defenses (look at plaintiff’s conduct):  Contributory Negligence  Comparative Negligence  Assumption of Risk  Basic Primary Defenses  Denial Defense: Most common defense is denial during trial—expert witnesses, documentation, etc. to prove standard of care was met; often used in professional negligence cases; if proven, no recovery  Statute of Limitations: The time period allotted for the injured party to file a lawsuit; varies by state and situation; pre-trial motion; if proven, complete bar to action  Exception: Discovery Rule  Failure to Mitigate Damages: Plaintiff has a duty to mitigate damages; for example, seek treatment for medical injuries (affirmative duty, can be seen as intervening act/cause)  Affirmative Defenses  Contributory Negligence: Plaintiff’s conduct was a contributing factor in his/her/their own injury; complete bar to recovery, even if 1% at fault  Comparative Negligence: Compares the negligence of plaintiff and defendant and apportions damages accordingly:  Pure Comparative Negligence: Plaintiff’s recovery is reduced by his/her/their amount of fault; can recover 30% even if 70% at fault  Modified (Majority): Plaintiff can only recover if his/her/their negligence was equal to or less than defendant’s negligence; more than 50% at fault, can’t recover  Affirmative Defenses, con’t.  Assumption of Risk: If plaintiff assumed risk of injury, s/he/they can’t recover  Express (Contractual): Prior to defendant’s negligence, plaintiff assumed the risk of injury by signing a release  Plaintiff knows and understands the contents +  Injury within scope of release +  Enforcement of release not contrary to public policy  Implied (Subjective): No express oral/written release  Plaintiff knew the risk +  Appreciated the magnitude +  Voluntarily assumed it Good Samaritan Laws  State laws that help protect health care professionals and ordinary citizens from liability while giving care to a victim of an accident or other emergency  No one is required to provide aid (omission to act)  Only required to act within limits of acquired skill and training  Can be found liable of negligence if deviate from standard of care once assistance has begun  Application: Practice Hypo  A state statute requires motorcyclists to wear a safety helmet while riding, and is enforced by means of citations and fines. Having lost his helmet, Adam jumped on his motorcycle without one and went riding down the street. Barb, who was driving her car in the opposite direction on the same street, briefly looked down to get her sunglasses, which had dropped to the floor. At that moment, a bee landed on Adam’s head. In attempting to brush it away, he lost control of the motorcycle. The motorcycle fell and went sliding over the double line into Barb’s lane with Adam pinned beneath it. When Barb retrieved her sunglasses and looked ahead, she saw the motorcycle was sliding towards her, going the wrong way in the lane. She abruptly turned her wheel to avoid hitting it, crossed over the double line, and collided head-on with a truck that was approaching her at twice the posted speed limit. The truck, owned and driven by Dave, was badly damaged in the collision, as was Barb’s car. Barb was seriously injured when the force of the collision threw her against her own seat belt, breaking her sternum.  On what theory or theories may damages be recovered, and what defenses might reasonably be raised in actions by Barb against Adam? Barb v. Adam: Hints  Negligence  Duty: Owed to all foreseeable plaintiffs  Standard of Care: Reasonable person  Negligence Per Se: Did the violation of the state cause the type of injury it was meant to protect?  Breach: Adam lost control of motorcycle while attempting to brush away the bee, was that reasonable?  Actual Cause: But for Adam losing control...  Proximate Cause: What kind of intervening event is Dave?  Damages:  Defenses: Comparative: Barb looked down to retrieve sunglasses, enough?  Assumption of Risk: Was Barb aware of the risk? Strict Liability & Products Liability Strict Liability  Strict liability is the imposition of absolute liability on a defendant without a finding of fault  (Such as tortious intent or negligence)  Plaintiff need only prove that the tort occured and that the defendant was responsible  Situations:  Animals  Abnormally dangerous activities  Strict Products Liability Strict Liability - Animals  Domestic animals: No strict liability for injuries caused by domestic animals unless D knew of the animal’s dangerous propensities  Cats, dogs, cattle, horses, etc.  Wild animals: Possessors of wild animals are strictly liable for harm done by the animal  Rattlesnakes, coyotes, monkeys. Bears, etc. Strict Liability - Abnormally Dangerous Activities  Unusually dangerous activities subject to strict liability based on balancing risk versus utility  Factors to consider:  1. Is there a high risk of great harm?  2. Can the risk be eliminated w reasonable care?  3. Common activity?  4. Appropriate to the area?  5. Utility to society versus risk to society? Products Liability  Products liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer.  Kramer v. Java World  Hot Coffee (film trailer)  NYT: Liebeck v. McDonald's Restaurants  Stella Liebeck's Injuries  Several different theories of products liability Products Liability Theories If intentional, just look at intentional torts (no need for a Products Liability analysis)  Strict Products Liability  Negligence  Express Warranty  Implied Warranty Products Liability Approach  Issue 1. Proper Damages?  Issue 2. Proper Parties?  Issue 3. Standard  Issue 4. Causation  Issue 5. Defenses Strict Products Liability  A commercial supplier places a product in the stream of commerce in an unreasonably dangerous defective condition which causes damages. Strict Products Liability Approach  Damages: Personal Injury/Property Damage  Parties: Anyone in supply chain (not private sellers) and Buyer/User/Foreseeable Bystander  Standard: Unreasonably dangerous defective product (Defect: Manufacturing, Design, Warning)  Causation: Actual & Proximate Cause  Defenses:  Unforeseeable misuse of product  Unforeseeable alteration of product  Assumption of Risk  NO contributory or comparative negligence  Standard - Defects  Manufacturing Defect: Product comes out of factory wrong  Design Defect  Risk/Benefit Test: Do risks outweigh benefit of product?  Consumer Expectation Test: Is product dangerous beyond expectations of ordinary consumer?  Warning Defect  Duty to warn of foreseeable significant risks at time of manufacture  Types  Absence of warning  Inadequate warning  Causation  Actual cause: Defendant’s actions must be the cause in fact of plaintiff’s injury +  Proximate Cause: Looks to see if there is any reason defendant should be relieved of liability (i.e., is it fair to hold defendant liable for the consequences of his/her/their actions?)  Direct Cause  Indirect Cause  Dependent Intervening Act  Independent Intervening Act  Superseding Act?  Negligence  A defective product is not enough, must show a breach (some unreasonable conduct) that led to the injury  Limited to behavior supply chain is not automatic  Negligence Approach  Damages: Personal Injury/Property Damage  Parties: Anyone in supply chain who breached duty (also private sellers, repairers); and all foreseeable Ps (Palsgraff)  Standard: Reasonable care under the circumstances  Causation: Actual & Proximate Cause  Defenses:  Unforeseeable misuse of product  Unforeseeable alteration of product  Contributory or comparative negligence  Assumption of Risk Warranty  Express Warranty  Statement about the safety/functionality of product that is not true and causes injury  Implied Warranty  Of merchantability OR for fitness for a particular purpose  Merchantability: Fit for average purpose intended at time sold (edible cheeseburger, functioning car)  Fitness for Particular Purpose: Implicitly warranted for (cold weather sleeping bag)  Express Warranty Approach  Damages: Personal Injury/Property Damage (& pure economic loss)  Parties: Anyone who makes the warranty and foreseeable P who relies on statement  Standard: Set by explicit statement; failure to conform to warranty leads to injury & liability  Causation: Actual & Proximate Cause  Defenses:  Unforeseeable misuse of product  Unforeseeable alteration of product  Assumption of Risk Implied Warranty Approach  Damages: Personal Injury/Property Damage (& pure economic loss)  Parties: Seller & purchaser  Standard: Set by warranty  Merchantability: Fit for average purpose intended at time sold  Fitness for Particular Purpose: Implicitly warranted for (cold weather sleeping bag)  Causation: Actual & Proximate Cause  Defenses:  Unforeseeable misuse of product  Unforeseeable alteration of product  Assumption of Risk  Application: Practice Hypo Peter takes his daughter to swimming lessons at BW Fitness Center. He and his daughter are not members of the Center: he has merely bought a series of swimming lessons. One Saturday morning while his daughter is swimming Peter wanders around the Center, then goes into the weight room. Peter decides to try out one of the weight machines. He selects a very heavy weight. He releases the brake on the machine, which sustains the weight until the user is ready to exercise. He quickly discovers that the weight he selected is too heavy for him. His body crumples under the weight. Peter can only get out from underneath the weight by twisting and falling out of the machine. In doing so, he severely injures his back. The machine is manufactured by DominaFlex, Inc. It bears a warning sticker next to the place where the user selects the weight to be lifted. The warning says: “WARNING. Always use spotters when you lift. Do not use this equipment without first receiving instruction or reading the information booklet.” A “spotter” stands by the machine when in use, to watch and give assistance if needed. Peter says he did not know what the term means. Members of the Center are given instruction in how to use the weight machines before they are allowed to use the weight room. Although use of the weight room is supposed to be confined to Center members, there is no sign stating so. The instruction booklet was not left by the machine. Peter wishes to sue DominaFlex, Inc. Peter v. Dominaflex: Hints to Get Started Design defect: Peter will allege that the weight machine was a product “in a defective condition unreasonably dangerous to the user.” There is nothing to indicate that the machine was badly manufactured, so his action would have to allege that it was poorly designed. It operated exactly as intended: the whole purpose of the machine is to put some amount of stress on the user’s muscles. The design defect, if any, could only be the absence of some kind of fail-safe mechanism to take the place of a “spotter” for lone users, supporting the weight if the user could no longer handle it. The question whether an “ordinary consumer” would expect the machine to have a fail-safe mechanism would be one for the jury to answer applying common sense standards. Some weight machines do have foot-operated levers that support the weight, so an “ordinary consumer” might have the expectation that all machines should be equipped with something similar. If the “risk-utility” standard is applied, it will be necessary to determine whether the risks posed by the machine could have been reduced without lessening its utility. That will involve consideration of the cost of installing a fail-safe mechanism and its effect on the operation and ease of use of the machine. Effect of warning: Warning labels can be sufficient to render safe a product that carries some inherent risk of harm. The weight machine in the present case bore such a warning label. However, that label used a rather technical term (“spotters”) and it referred to an instruction booklet. There was an obvious risk that the instruction booklet would not be kept with the machine at all times and that the machine might be used by users who would not able to consult the booklet first. In the circumstances, it seems unlikely that the warning would be sufficient to relieve Dominaflex from liability if the design of the machine were to be held to be defective.  Comparative fault: Lastly, it is necessary again to consider the possibility that Peter may have failed to take reasonable care for his own safety. Any comparative fault on his part would have a different effect in the action against Dominaflex than it would in the action against Briarwood. In General Motors v. Sanchez (Tex, 1999), it was held that comparative negligence of a product user should only operate to reduce recovery if it goes beyond a failure to discover and guard against the defect in the product. Peter’s mistake was to use the machine without realizing that it could harm him if he chose too heavy a weight, because there was no fail-safe device. If the Dominaflex machine was defectively unsafe, Peter’s fault therefore seems to have been only a failure to recognize and guard against the defect. Applying the Sanchez test, that would not lead to a reduction of his recovery. His recovery would only be reduced if he had used the machine in some way that went beyond a failure to identify the danger created by its defect.