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