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Torts (Economic harm & Dignitary Torts (Defamation (Constitutional…

- - - - Defamatory False Message lowering a P in the community's esteem or discouraging a 3rd person from associating with him, causing him reputational harm Statement of fact, not opinion
      - Publication: received by a 3rd person who understood it to be about the pl. P must show D either intentionally published the info or was neg in publishing.
        
        Republication rule: in addition to D who originates the defamatory message, other persons who repeat it are potentially liable, but they have to know that the material distributed contained the message (or should have known).
      - Pleading problems: where P is not named, they must allege it is of or concerning P --> P must be identifiable by context
    - - Libel is emobodied in any relatively permanent form --> reputational harm presumed and damages do not have to be proven
      - Slander is not preserved in permanent form, including the spoken word. --> to recover, must prove special damages which are specific econ losses that flow from the slander, then can get reputation damages too
        
        Slander per se: CLUB: 1) commission of a crime involving moral turpitude or infamous punishment (prison/death), 2) allegations of a loathsome disease, 3) imputes improper conduct of business or profession, 4) serious sexual misconduct or unchastity of a woman
    - - General: no proof of actual damages req'd. Harm to reputation, generally, is presumed
      - Pecuniary or special: quantifiable monetary losses (lost clients, etc.). P must prove unless libel/slander per se.
      - Punitive: Need additional showing of malice
    - - Truth: P must prove falsity of claim in prima facie case. Exception: P is a private P and matter is a private concern.
      - Privileges
        
        Absolute: D may not be held liable for an otherwise defamatory statement as a matter of law no matter how bad D is (blanket protection). D has BOP. Contexts:
        
        b/w high ranking exec officials
        
        made in conduct of judicial proceedings
        
        statements made on floor of Leg
        
        Comms b/w spouses
        
        Qualified/Conditional: D is not held liable for an otherwise defamatory message, unless he loses the protection of the privilege. D has BOP.
        
        D is immune from liability for defamatory messages (among others):
        
        that were communicated on a matter to the recipient of the comm or a 3rd person
        
        that were communicated concerning a matter of public interest to one empowered to protect that interest
        
        made in a comm that appears reas necessary to protect or advance the D's own legitimate interests (responding to job recommendation request)
        
        D will lose privilege if:
        
        he does not believe the truth of the defamatory comm
        
        is reckless as to its truth/falsity
        
        bad intent/ acts out of malice
      - Consent
    - - Nature of the plaintiff
        
        Public figure: treated just like public official (same C&C standard). 1) All purpose public figures: household names (Madonna) 2) Limited public figures: inject selves in controversy
        
        Private Figure: Look at subject matter and determine whether it is of public or private concern. Consider form, content and context.
        
        Public concern: if you are willing (and can) prove reputation harm (actual damages), the state can set any standard of fault but always below SL. Most use neg. Presumed or punitive damages req actual malice.
        
        Private concern: P does not have to prove actual malice to get presumed or punitive damages (not tested)
        
        Public Official: If defamation is related to capacity as a public official, P must prove C&C E of actual malice --> D knew it was false or recklessly disregarded truth or falsity
      - Subject matter of the controversy: matter of public concern?
      - Malice is req'd: knowing falsity or recklessness as to truth or falsity
      - Req'd for presumed or punitive damages
    - - Step Two: Rule: Malice req'd for public official/figure, or matter of public concern (only if facts support). Define malice: Knowing falsity or reckless disregard for truth or falsity. Apply to facts. Conclude: malice?
      - Step Three: Rule Damages. Apply to facts. Conclude: available damages?
      - Step one: Rule: Defamatory, false message (of fact) of or concerning the P published to a 3rd person that harms the P's reputation. Apply to facts. Conclude: Defamation?
      - Step Four: Rule: Defenses (truth, privilege, consent). Apply to facts: a) outside scope of privilege or b) malice. Conclude: Defense Exists? Liable for defamation?
  - - - Can be 1) false, affirmative assertion of fact, 2) active concealment (roll back odometer), or 3) omission of fact/failure to disclose
        
        Failure to disclose not enough unless:
        
        ambiguous or misleading statement that causes reliance; or
        
        D makes assertion, believing true, but then discovers it was false or circs changed and fails to disclose; or
        
        Fiduciary relationship; or
        
        D makes false assertion not intending reliance but discover P relied; or
        
        P reas expects there would be disclosure
  - - - physical or non-physical
      - must be highly objectionable to a reas person
      - refers to the P's physical solitude and the privacy of personal affirs or concerns. Ps must have a reas expectation of privacy
      - Damages include compensatory damages (mental distress) and if bad enough, punitive damages
    - - must show some level of fault by D
      - Reas person would find highly offense offensive
      - Must be communicated to a substantial number of people
    - - must be publication to the public
      - does not apply if publication is newsworthy
      - Needs to be highly offensive to a reas person and not of legitimate public concern
      - Look for passage of time: 20 years pass and less relevant
      - Injunction possible b/c info is true (unlike defamation)
      - If D gets from public records, can't be liable for sharing that info
  - - - Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect
      - whether the conduct involves a significant interference with the public health, safety, peace, comfort, or convenience
      - whether the conduct is proscribed by a statute, ordinance, or regulation
    - - P cannot recover for a public nuisance unless they suffer a harm of a kind different from that suffered by other members of the public.
    - - Factors
        
        Extent of P's injury
        
        Alternatives?
        
        Who was there first? (used to be a defense, now just a factor)
        
        Value of D's activity
        
        Nature of locality
      - Mental state: usually intentional, b/c once D is placed on notice that she is interfering, D still doesn't stop
      - Remedy: Injunction (equitable -- but courts may decide, in lieu of or in addition to IR to grant damages or other recovery). P must persuade judge that:
        
        Suffering or will suffer irreparable harm + Damages are inadequate remedy
        
        Judge will then do balancing test
- - - - Sometimes the D intended to commit one tort (assault) but commits a different tort against that person or another person (battery). The D's intent is transferred to the second tort [limited to assault and battery, false imprisonment, trespass to land, and trespass to chattels -- everything but IIED and conversion]
  - - - D is not liable for reckless or neg (unintentional) entry, unless he causes damage
      - Mistake is not a defense; need not know they are trespassing
      - P's land = P must be in actual possession or have the right to immediate possession of that land (NOT ownership) -- LL, tenant, APer, etc.
      - P's land includes the area both above and below the surface
      - Liable for nominal damages and actual harm. Damage is not req'd for trespass COA
      - Intent 1) D desired to enter the land/caused something to enter or 2) D knew that land entry was substantially certain to result
      - Entry: 1) D enters or causes someone/something to enter, 2) D enters the land lawfully but then refuses to leave when req'd, or 3) D fails to remove/eject from P's land when under legal duty to do so
    - - P's chattel: Tangible personal property OR intangible property that has a physical representation.
      - Mistake is not a defense.
      - Interference = uses or borrows w/out authorization. includes dispossession or intermeddling. More serious interference may amount to conversion.
      - Vs. Larceny: larceny req's an intent to permanently deprive the owner of possession. Tort req's only an intent to take, regardless of knowl of ownership
      - Intent: 1) D intentionally performs the physical act that interferes, 2) liable even though D did not intend to trespass w/ good faith
      - Actual damages: unlike trespass to land, need damages, not necessarily to the chattel but actual damages req'd by loss of use in case of dispossession
      - Remedies: Damages: cost of repair, FMV, punitive if bad actor. Replevin: get back personal property of which one has been wrongfully dispossessed
    - - More serious interference: 1) greater use of the chattel AND 2) a longer period of interference 3) value 4) damage
      - Intent: Mistake is not a defense--liable even if actin in good faith and no intent.
      - Remedies: Forced sale (common): market value at time converted + punitive if bad actor. Replevin: brought by P to get personal property back
      - D's offer to return chattel does not alleviate conversion
      - Dominion and control (BFP). Exercise by D of dominion and control over the chattel.
  - - - Exaggerated fears are only actionable if D knew about the fear and used it to put P in apprehension. Fear itself is not required, only apprehension of a harmful/offensive contact.
      - Words alone are insufficient. An overt act is required.
      - Actual damages not required; P can recover nominal damages.
      - Intent: D must 1) act w/ desire to cause immediate harmful or offensive contact or the apprehension of such contact, or 2) know that such a result is substantially certain to result
      - Reasonable apprehension: if reas, doesn't matter whether D could actually carry out the threat (if gun is unloaded, can still be assault)
      - Imminent battery: must be able to occur almost instantly
    - - To the person or something physically closely connected thereto (cars? lecturer: no. Qbank: yes ...)
      - direct touching not required (poison). Includes setting in motion a force that brings about harmful contact (throwing a baseball).
      - Apprehension is not required
      - Lack of consent. if a Doctor goes outside of consent scope (even if no harm results), there is a battery
      - Intent: D must either 1) desire to cause an immediate harmful of offensive contact, or 2) know that such contact is substantially certain to occur
      - Harmful or offensive contact: 1) inflict pain or impairment of any body function, 2) offensive to reas person, 3) P need not be aware of the contact (unlike assault)
      - P does not have to prove injury, will get compensatory damages just by showing the elements
    - - even a brief time is sufficient. No specific duration of time required.
      - No duty for P to resist if def makes a credible threat to use physical force
      - Not confined if there is a reas means of escape that P is actually aware exists. Reas = no threat of harm to P or property, can't expose P to risk of embarrassment
      - Intent: 1) D desires to confine or restrain P in a bounded area or 2) knows that such confinement is virtually certain to result
      - Confinement in bounded area: confining by physical barriers; failing to release the P where the D has a legal duty to do so; or asserting invalid legal authority
      - Against P's will: consent is a defense
      - P is aware of confinement OR injured thereby
      - Shopkeeper's Privilege: See defenses
    - - Extreme and outrageous conduct: exceeds all bounds tolerated by civilized society. Offensive or insulting language generally not enough, except when: 1) D is a common carrier/innkeeper, 2) D knows of P's particular sensitivity, or 3) authority figure using racial/ethnic slurs against underling
      - Severe ED: 1) P does not have to prove physical injury, but distress must be severe--greater than reas person would expect to endure. 2) Must be substantial/long-lasting as opposed to trivial/transitory
      - Intentional or Recklessness: Intentional = D acts w/ desire to cause severe ED or knows that such severe ED is virtually certain to occur. Recklessness = D acts in conscious disregard of a high degree of probability that ED will follow
  - - - If a person is about to be attacked but knows the attack is based on a mistake as to identity, the person is not privileged to await the attack and then use force to defend IF he has time to correct the mistake and prevent the attack.
    - - Public Necessity: D injures a private property interest to protect the public at-large from severe harm. A complete defense.
      - Private Necessity: D injures a private property interest to protect a private interest valued greater than the appropriated or injured property. Incomplete defense--D is privileged to interfere w/ the property, but liable for the damage
    - - taking part in a game manifests a willingness to submit to such bodily contacts ONLY as are permitted by the game rules.
    - - Shopkeeper's privilege defense: requires detention that is: 1) in a reas manner on the premises/immediate vicinity, 2) for a reas period of time, and 3) based on a reas belief as to theft. [Can use reas force to detain -- so also can apply in battery.]
- - - - Contributory Negligence: Minority rule--only use if fact pattern says its a contributory neg jx. Any neg/fault by P bars their recovery. Last clear chance rule: Neg P can still fully recover if he can show the D had the last clear chance to avoid the injury and failed to do so (D's neg came after P's) -- LCR is usually the wrong answer.
      - Pure Comparative Fault: assume applies unless told so: P can recover no matter how much at fault -- recovery is whole amt of damages - P's % of fault. J/S applies: If multiple D's, subtract P's % of fault and then P can sue one D for full remaining amt and that D can seek contribution from the other. Comparative fault does not apply to intentional torts.
      - Modified comparative fault: Barred if P is as much or more at fault.
    - - Not allowed for necessities (if LL rents apt or hospital provides care)
      - P's recovery is barred or reduced if D shows that P: 1) knew the risk, 2) understood the risk, and 3) voluntarily chose to confront the risk.
      - Firefighter's Rule: where P is a professional rescuer and is injured due to inherent risk of that job, cannot recover in neg against person who created need. Different from good doers who we want to encourage to come rescue, so they can sue for neg.
      - Primary assumption of risk: in certain contexts, there is no duty to be non-neg. I.e. playing basketball --> in agreeing to play, you relieve duty
    - - Pure: Can recover even if P's neg exceeds D's. MBE Default Rule (w/o last clear chance doctrine)
      - Modified: Recovery only if P's neg is less than D's
      - If one tortfeasor committed an intentional tort, the negligent tortfeasor can be indemnified for FULL damages (paid to P) from the intentional tortfeasor
      - Release: When a tortfeasor makes a pretrial agreement to pay her share of damages to the P, such settlements usually precede the ct's determination of each tortfeasor's relative liability. The settling D's % of fault is deducted from the damages awarded the P regardless of the actual payment made by the settling D.
  - - - STEP ONE: Does law impose a duty from D to P?
        
        If P's injury is not personal injury or property damages, duty issues arise
        
        Negligent Infliction of emotional distress (cts reluctant to find this)
        
        D engages in neg conduct and as a result, P suffers ED + some sort of physical manifestation
        
        Exceptions to ^ reqs: 1) D neg transmits telegram of the death of a loved one and 2) D neg mishandles a corpse
        
        Most jxs require P to have been in zone of danger--at risk of physical harm.
        
        P must have suffered physical manifestation of proving genuineness
        
        Bystander Actions: physical harm occurs to a close relative and P suffers ED as a result of injury to the close relative
        
        Had a close personal relationship with victim (immediate family member)
        
        Located near scene of the accident
        
        Suffered severe emotional distress from the sensory and contemporaneous observation of the scene
        
        Wrongful conception, birth, and life
        
        Palsgraf: When action is taken, this ^ duty of care is owed to all foreseeable Ps (who are inside the geographic zone of danger at the time of D's neg). Rescuers are owed an independent duty, but nonprofessional rescuers are ALWAYS foreseeable P's as a matter of policy and can recover against negligent party creating need
        
        Possessors of land (LO, LL, utility or gov entity)
        
        P's on the land
        
        Licensee: (friend/social guest -- enters D's land w/ D's express or implied permission and who's not there for a purpose benefitting D or D's activities nor is land held open to public): Duty to to warn of known concealed dangerous conditions (but not to cure them)
        
        Trespassers (enter w/o express or implied consent of land possessor): Duty to avoid infliction of wilful or wanton harm
        
        Child Trespassers (attractive nuisance doctrine): 5-factor test, if conditions apply, even tho child, treated as invitee
        
        too young to appreciate the danger
        
        D knows or has reason to know of trespass by kids (generally, not particular P)
        
        D knows of the dangerous condition
        
        Artificial condition
        
        Does the risk outweigh the utility and burden to fix it?
        
        Invitee: (customer -- enters onto D's land at D's express or implied invite and for a purpose relating to D's interest or activities [econ benefit]): D has duty to exercise reas care to prevent injuries caused by activities conducted on his land, and to discover dangerous conditions
        
        Other duties by land possessors:
        
        ONLY for an invitee does LO have a duty to reas search out dangers on property
        
        If known or frequent trespassers (must be obvious like well-worn path): duty to warn of concealed dangerous artificial conditions
        
        D is engaged in activity on the land: Duty of reas care owed to all except unknown trespassers
        
        P's not on land but adjacent to it:
        
        Artificial condition on land: duty of reas care
        
        natural condition from land: no duty except trees in urban areas
        
        LL/T: LL's not liable unless:
        
        common areas over which LL retains control
        
        neg repairs
        
        at time of lease, LL knows of a concealed dangerous condition
        
        LL knows that T is going to hold property open to public
        
        D has a legal duty to act as an ordinary, prudent, reas person taking precaution against unreas risk of injury to others.
        
        Nonfeasance: No affirmative duty to act exists
        
        No duty to rescue or aid excpet when (these result in AFFIRMATIVE DUTY to aid P):
        
        Special relationship of dependence or mutual dependence:
        
        Innkeepers
        
        Special Relationships (employer--employee, school--pupil, parent--child, business--patron, jailor--prisoner, LL-T, therapists, drinking buddies)
        
        Common carriers
        
        D's tortious conduct creates need to rescue
        
        undertaking to act--don't have to intervene but if you do, must act reas. In MBE, assume no statute unless given one, but include the following three possibilities in a MEE:
        
        Maj jxs: you are only liable if you leave the D in a worse position. Other jxs: must act reasonably once rescue is undertaken
        
        Good Samaritan statutes: those who rescue others and injure them in the rescue are not liable for that injury.
        
        No duty to control 3rd parties to prevent harm to another. Exceptions:
        
        Masters have a duty to control servants while acting w/in the scope of employment
        
        Special relationship AND high level of foreseeability of 3rd party criminal conduct established by prior similar instances b/w D and 3rd party that gives 3rd party right of protection or imposes a duty on D to control the 3rd party's conduct -- doctor(or therapist)/patient
        
        Masters have a duty of care in hiring employees. Look for knowl of a servant's prior bad acts
        
        Parents and teachers have a duty to exercise reas care to control their child if they 1) know or have reas to know of the necessity and 2) have the ability to control their child
        
        Providers of alcohol: Trad: purveyor not responsible for DUI injuries. Dram shop acts: impose liability on establishments who they know or should know to be drunk when a person drives and harms a 3rd person
        
        Neg entrustment: give something dangerous to someone D knows or should know is not competent to handle it
        
        D is gov entity: if duty owed depends on function
        
        Discretionary activity (using judgment and allocating resources, i.e. setting policy): Cts will not find a duty
        
        Ministerial function: Duty once gov has undertaken act (ex. stop sign installed incorrectly leading to accident)
        
        Proprietary function (acting in private area): treated as any other D for duty analysis. (If gov provides a utility, cts only impose duty to those in privity of K w/ the utility)
        
        Public Duty Doctrine: Cts find no duty when cops/fire fail to provide an adequate response to any one person (their duty is generally to the public), except when: 1) special relationship or 2) agency has increased the danger
      - STEP TWO: What Standard of Care (measure of duty) Applies?
        
        D's conduct is measured against a reas, ordinarily prudent person (RPP) under same or similar circs
        
        Objective standard: D's conduct is measured against expectation of conduct w/in community --> rise to level of average person in community
        
        NOT considered: mental ability, speed of reflexes, or even insanity
        
        IS considered: 1) physical conditions (blind, deaf, amputee): D held to the standard of a RPP w/ that condition. 2) emergencies not of D's own making, considered by jury: ex.: rushing to hospital b/c child is dying. Jury can consider to see if D acted reas.
        
        Breach = Failure to act as a RPP. Factors to breach analysis:
        
        2) what is the likely magnitude of the harm going to be?
        
        1) what is the probability of harm occurring from D's conduct?
        
        3) what is the burden on D to avoid the harm?
        
        Professionals have a higher standard of care, established by custom
        
        Med-mal: docs req'd to possess and use the knowl, skill, training of other docs in good standing in relevant geo community. Specialists = nat'l standard. General practitioners = locality standard
        
        Lawyers, architects, accountants: so long as professional complies w/ custom, cannot be found to have breached duty. Deviation from custom means breach of that duty.
        
        Lack of informed consent: negligence so still need damages?
        
        Trad: docs must divulge risks that are customarily divulged.
        
        Trad: Doc liable for battery if no informed consent about risks -- consent negated b/c lack of disclosure (still the case when gross deviation from consent).
        
        New trend: Standard of materiality: Must divulge ALL MATERIAL risks that a reas patient would want to know in deciding whether to undergo procedure. Failure to divulge material risks is malpractice IF P can show she would have refused procedure if risk was divulged
        
        Relationships (bailor/bailee, owner/occupier of land, landlord/tenant) also matter
        
        Children: Majority Rule: conduct is held to the standard of care a reas child at the same age, education, intelligence and experience
        
        Some jxs divide by age: 6 and below it is presumed they are incapable of neg, 7-13 there is a rebuttable presumption of no neg; 14+ there is a rebuttable presumption of capability for neg
        
        Exception to Majority rule: children engaging in adult, inherently dangerous activities are held to adult standard of care (driving)
        
        Negligence per se: When a statute provides for a criminal penalty, that statute's specific duty replaces the common law duty. P must prove 1) that he was in the class intended to be protected by the statute, 2) the harm suffered is the particular harm that the statute was designed to prevent, and 3) the standards of conduct are clearly defined. Procedural Effect: Suff to avoid judgment as a matter of law (P doesn't automatically win, but the case won't be dismissed if P only proves res ipsa and no other neg elements)
        
        if statute applies: (maj rule): unexcused violation of the law establishes that D breached duty to P. P still needs to prove proximate cause, damages, etc.
        
        Exception: excused statutory violation like an emergency not of D's own making or when it's more dangerous to comply w/ the law
        
        Exception: licensing statutes: no license does not create liability (expired license is not neg per se).
        
        When statute does not apply: statute will not set standard of care and case proceeds under RPP, not neg per se
        
        Statutory Neg: statutes that provide civil liability supersede common law of torts (ex: state law says anyone injured in a car accident and not wearing seatbelt cannot recover in tort, P cannot recover in neg action if not wearing belt)
    - - Circumstantial: E from which one can draw reas inference
        
        Res Ipsa Loquitur: Allows jury to INFER (but NOT presume) D's breach based on nature of accident and D's relationship to it. Only used to show duty + breach (no other elements), and only used if there is no direct evidence, like witness testimony. Enough to avoid a directed verdict (but still have to prove that D's conduct was negligent in order to get judgment in your favor). Allows all those connected with the operation to be liable for negligence, even w/o showing causation (if there is a finite group to be blamed). P needs to show:
        
        The accident that caused the injury would not normally occur unless someone was negligent
        
        D is probably responsible party b/c adequate control over instrumentality causing the accident
        
        P did not contribute to injury
        
        Slip-and-fall cases: P must show that D was neg for not discovering and repairing the dangerous condition -- dangerous condition was there long enough and D should have noticed it (ex: slipped on rotten banana peel).
      - Direct E (rare): Eye witness or video tape of actual occurrence of alleged neg
    - - Cause-in-Fact/Actual Cause: Connects D' breach to P's injury: P must show that, more likely than not, but for D's neg, P would not have been injured. Or, that the D's actions were a significant factor in bringing about the injury. POTE: as long as "but for" is more than 50% likely, then D is liable for FULL extent of damages
        
        Multiple Causes: Substantial factor test (instead of but for). When 2 or more Ds have been neg and each alone would have been suff. to cause entire harm, but uncertainty exists about which one caused the injury, then each D is a cause-in-fact if that D was a substantial factor in causing the harm (ex: 2 arsonists' fires burn down the same mansion).
        
        Assume j/s liability --> can sue one or both Ds and collect entire amt from 1 D alone, who can then seek contribution from the other D.
        
        Loss of chance (typically med mal situations) -- NOT majority. P must show that but for the med mal, P would not have lost chance/died (if doc found cancer, P would have had a 40% chance of survival --> P loses. 60% chance --> P wins)
        
        many jxs now recharacterize injury to loss of chance, and damages are reduced but not extinguished
        
        Alternative liability theory (Summer v. Tice, hunters shoot bush that's actually P). Burden shifts to Ds to show that they were not the cause. If D cannot do so, they will be j/s liable. Factors when to apply:
        
        All Ds are being sued together. Can't use if 1 is left out
        
        Small number of Ds
        
        All Ds are tortious/neg
        
        Market share liability: Generic product and P cannot show which of a large group of neg D's was responsible. P can sue those who might have caused her harm and each D is responsible based on its share of the market. Several liability: X had 10% of relative market, will pay 10% of P's dmgs unless it can show it could not have made the product that harmed
      - Proximate/Legal Cause: Policy reasons to cut off liability: a LIMITATION on liability. Ds are liable for the normal incidents w/in the increased risk caused by their acts. The risk must be foreseeable.
        
        Unforeseeable extent of harm: Doesn't matter that P suffered more harm than one could foresee --> D responsible for full extent as long as TYPE of harm is foreseeable
        
        Eggshell skull/plaintiff rule. Ds take the full consequence for P's injuries, even if the injuries are more severe than they would have been w/ a normal person (brittle bone disease). "Take your victim as you find them."
        
        If there is an uninterrupted chain of events b/w a D's neg act and the P's injury, then it is a direct cause and D is liable for all foreseeable harmful results
        
        Unforeseeable manner of harm
        
        An indirect cause case is where a force came into motion after the D's act and combined w/ the neg act to cause the P's injury. The intervening force may break the chain of causation b/w the initial act and the ultimate injury. The more culpable the intervening force, the more likely it supersedes.
        
        Unforeseeable intervening acts do cut off liability and relieve tortfeasor of liability for lack of proxy cause. Acts of god, criminal acts of 3rd persons (unless foreseeable), intentional torts of 3rd persons, or extraordinary forms of neg conduct by 3 persons
        
        Foreseeable intervening acts do not cut off a D's liability. These include subsequent medical malpractice, neg of rescuers, an subsequent accidents. Subsequent neg is generally not so unforeseeable that it cuts off liability. Look for passage of time (longer time = at some point liability is cut)
        
        Unforeseeable type of harm: was injury suffered w/in the risk created by D's neg conduct? (ex: rat poison on the spice rack. Poison is foreseeable, its explosion is not).
    - - Compensatory damages: Return P to pre-injury position. Must be: 1) type must be foreseeable (not the extent but the type of damage), 2) reas certain (not speculative), 3) not avoidable
        
        Special damages: Pecuniary (med costs), lost wages, cost of repair. Can recover past, present and future (reduced to present value) damages. Collateral source rule: the fact that P has insurance doesn't mean D doesn't have to pay them. Also applies to gratuitous services.
        
        General damages: more controversial b/c intangible. Pain and suffering -- difficult to measure
      - Punitive damages: never recoverable just for neg -- must be more culpable than neg, like willful, malicious, or reckless. Wealth of D is highly relevant. Due process Clause limits amt -- more than 10% ratio to compensatory is unconst'l
- - - - Control: Defect must have existed at the time the product left that D's control
      - Defect
        
        Design Defect: Made as intended by manufacturer but still presents a danger of personal injury or property to P.
        
        Seller must anticipate reas foreseeable misuses of the product
        
        No req of contractual privity
        
        Reas alternative design must exist at the time of the original design. Later improvements (state of the art) do not constitute a RAD
        
        2 tests:
        
        Risk-utility balancing: jury determines the danger it threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost, EVEN if there is a warning. Easy alternative? High likelihood of harm? Utility?
        
        Ordinary consumer expectation test: product is more dangerous than would be contemplated by the ordinary consumer, w/ ordinary knowl common to the community
        
        Manufacturing: Manufactured in a form other than intended by manufacturer.
        
        P must show: product more dangerous than consumer would reas expect when using in its intended manner OR it is in a condition not intended by manufacturer and defected existed when leaving manufacturer's hand
        
        Food products: consumer expectations standard
        
        Absence of Warnings
        
        P is asserting a warning is inadequate: reasonableness. Does warning reas inform reader of risks? Look at language, placement, size of font.
        
        P is asserting there is no warning: manufacturer has to warn about risks of which it knows or should know and gravity and probability of harm. 1% risk of death: should warn. 1% risk of tooth discoloration, probably not.
      - Causation: Both actual cause (but for) and proximate cause req'd. Proximate: D knows or should have known about the risk --> but ANYONE in marketing chain can be liable (no superseding causes)
      - Changes: Product must reach the user w/o substantial change in the condition in which it was supplied
      - Damages: Compensatory and punitive damages avail for personal injury or property damage other than to the product itself (when harm is only to defective product, only claim is breach of warranty). Most states deny recovery under SL when the sole claim is for econ loss (missing an expensive delivery due to car problems -- no recovery unless garage gets damaged from flames)
      - Defenses: Assumption of the risk (comparative fault/general unreas conduct by P), adequate warning, product misuse by P (neither intended nor foreseeable), alteration (employer removes safety devices to increase efficiency)
      - Proper P: any P who is a user, consumer, or bystander (rescuer) physically injured using defective product
      - Proper D: commercial suppliers AT ALL LEVELS of distribution chain and those in market of selling it -- wholesaler, store, commercial lessers and sellers of used goods, etc. Only commercial suppliers held liable, not casual sellers
      - Proper context: PRODUCTS. Generally, services are not enough. When both a product and service, goods must dominate.
      - Product Liability on Negligence Theory: Any foreseeable P entitled to bring action. Analyze conduct of each D and ask if reas (differentiate from strict products, which consider the product, not person). Res ipsa loquitur takes place of manufacturing defect in neg theory (toe in tobacco). All neg defenses apply. Test: Would the defect be discoverable upon reas inspection (if D reas inspected, not neg, OR not neg if the goods come from a reputable manufacturer)
      - Products liability on warranty theory
        
        Express Warranty exists where D makes a specific rep as to the quality/nature of the product that becomes a basis of the bargain
        
        any seller can make this (manufacturer, distributor, seller)
        
        can occur via advertising, during negotiations, or as K provision
        
        Implied Warrant (of Merchantability): where a merchant deals in goods of particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable --> they are of average quality for goods of that kind and generally fit for the purpose of which such goods are normally used.
        
        Reqs of privity and notice
        
        can be disclaimed by K
        
        Where harm is to the product itself, the only claim a P can pursue is for warranty.
    - - Abnormally dangerous when:
        
        cannot engage w/o risk and cannot eliminate risk w/ care +
        
        not a commonly undertaken activity in the community
        
        high risk of serious harm to other +
      - P cannot recover absent proof of fault as long as D was involved and the activity caused the harm
      - Proximate cause: P must be injured by the risk that makes it dangerous
      - Need Foreseeable HARM and Foreseeable PLAINTIFF
    - - Assumption of the risk of injury (i.e. attending dogfighting) is a defense (knowingly and unreas subjecting oneself to harm), but NOT for rescuers
    - - contributory neg: D generally CANNOT raise this defense w/ SL
        
        Exception: P knew of the danger that justified imposition of SL, and his contributory neg caused exactly that danger to be manifested --> assumption of risk and P is completely barred from recovery
      - No SL to unknown trespassers
- - - - Whether IC or employee depends on whether hirer dictates the means, method and manner of work. The more control exercised by hirer, more likely employee rather than IC.
    - - Employer can be directly liable if neg hiring
      - intentional torts by employee are generally outside scope except when employee uses force in duty (bouncer)