1/22/15 10:12 AMLoves premises liability-Florida Premises liability law

The Duty of CareSpecial CircumstancesTo Duty or Not to DutyLast semester we mostly focused on WHAT was the duty of care owed to a plaintiff, not IF there duty of care owed in the first place.Rpp, and how we asses it. Child involve, emergency situation.Generally speaking, a defendant does not owe a plaintiff a duty of care to help if the plaintiff is in peril ,or to control the actions of 3rd parties that may harm plaintiff. If I am walkning down the street and someone is drowing I don't owe a duty of care to save that person. Morally reprehensible and not helping them. Morally ye, but no legal duty to help. Or to control the action of 3rd party. While a defendants not doing either of these things may be MORALLY reprehensible, there is generally no recognized LEGAL duty to do soHowever, if the defendants actions placed plaintiff in a position of peril, or increased her risk of harm by a 3rd party, then the defendant does owe the plaintiff a duty of care. Unless you did something to increase the risk, you don't havea duty to help. So the court will ask: did you do anything to increase it? Therefore, courts will look at nature of defendants actions in those circumstances to determine if a duty of care existsNonfeasance vs. Misfeasanceif you did something to increased the peril, then you have a duty.If you take action that increase that persons peril, like foreseeable forces, and superseding causesMisfeace: nature of actions increase, then duty of care could attach to that D. Nonfeases is failure to aid.Misfease is affirmative action that drove the injuries. Nonfeasance vs. Misfeasance (these 2 criterias are objective, but will be applied subjectively) like the cannons of construction. 2 concepts with objective criterias but the application depends on the jurisdiction and the decision making. There is not a right or wrong answer, what matters is the correct analysis.Nonfeasance Simply failing to aid a plaintiff in peril which was not caused by defendant, or failing to prevent the actions of 3rd parties unrelated to Defendant from harming PlaintiffGenerally, no duty of care owed to plaintiffMisfeasance Affirmative actions by defendant which placed plaintiff in a position of peril or increased the risk of harm to plaintiff by a 3rd party.Defendant would generally owe a duty of care to plaintiff for these types of actionsLets look at Two ExamplesYania vs. Bigan, pg. 359Actions here according to P were misfeasance. Did the D take affirmative action that increase the Ps risk of harm? Court is saying: this is a grown man. He was able to appreciate the danger, and able to tell whether he could jump or not. Appreciation for circumstances, and it was his own decision to jump. D actions were morally reprehensible. No duty of care on the part of the D, thus, the actions were characterize as nonfeasance. In an action like this, you plead in the alternative and can bring up contributory negligence. Defense that comes after P can prove the elements of the case. So both, I don't owe a duty plus contributory negligence. You plead in the alternative. You raise the Contributory negligence you don't know the way the court is going to rule on this. This can be done because the cajolery did in fact increase the risk of harm. Raising contributory negligence would be a different issue, but it could be brought. Is there a duty of care in the first place? This is what to court will look at first. Then after that is established, we will we will see if the actions were misfeasance or nonfeasance, in other words, if the actions of the D increased or not he risk of harm. Weirum vs. RKO General, pg. 362We don't have a duty of care to control the actions of 3rd parties.1st amendment idea that we are free to do these kinds of advertisement. Case of misfeasance, nor of a nonfeasance.Foreeable that the activities because of their nature, and the way of the promotions, it was reasonable forseeable that this would happen. Palsgraf note: whether the P was a foreseeable P. Foreseeability of the P herself. What we are saying is if P is unforeseeable, no duty attaches. From the threshold question, the defendant in that case said that Palsgraph was not a forseeable P, thus no duty attaches to her.

Rescuer DoctrineDo you remember last semester when we said that when a defendant injures a plaintiff and dependent, foreseeable forces intervene which make the plaintiffs condition worse that the defendant is still liable for the full extent of plaintiffs injuries?Example: a rescuer arrives on the scene of an automobile accident and causes further injury to plaintiff , then that defendant is liable for the full extent of plaintiffs injuries.

But what happens when the rescuer herself is injured in the process of trying to help the plaintiff?D has to pay damages or owe duty of care to that 3rd party? Yes. Whether rescuer is going to be owed a duty of care. Lets look at Day vs. Waffle House, pg. 367.Waffle house claimed they don't owe a duty of care to the original P or the rescuer. If somebody comes in to help someone, in a separate independent duty of care comes in, and it is almost a vicarious liability. Duty of care is owned to the 3rd party. The 3rd party that comes in to help will be owed a duty of care as if it was the original victim. Voluntarily Assumed DutiesEven when there is no legal duty to act in a given situation, a duty of care generally arises where the defendant voluntarily undertakes to render some type of aid or assistance. One exception is misfeasance.Common exceptions are Good Samaritan statutes which are usually passed to protect licensed doctors and nurses from liability should they gratuitously render aidUsually not to require people to aid others as some mistakenly believeIf I voluntarily and gratuitous help someone then I am bound and putting my self in the hoop. Very few jurisdiction have a duty to aid. You will only will be held to the negligence standard if you have the physical ability to aid them, and if you fail to do, and hurt the person, you will only be held accountable if you are grossly negligent or grossly unreasonable. Special RelationshipsWe said that generally here is no duty to control the conduct of 3rd parties to prevent the 3rd party from causing harm to anotherHowever, the existence of a special relationship between the affected parties can give rise to a duty of care on the part of defendantA special relationship between the defendant and the 3d party, impose a duty on defendant to control the 3rd partys actions Defendant knows or should know the 3rd party is likely to commit such actsActual ability or authority to control the 3rd partyNot just a special relationship. First analyze whether there was a special relationship, did D know that the person was about to do that, and did D have the authority to control the person?A special relationship between the defendant and the would-be victim of a 3rd partys actions, imposes a duty on defendant to protect the would-be victimIn that situation the D would not have a duty of care because the relationship is not with them. D does not have a duty to the 3rd party. Did the D have a special relationship with the 3rd party, or .>>>>Common Examples of Special RelationshipsCommon-carrier & passengerIf you are an airline and a passage, the airline has a special relationship to you. Cruiseship, bus drivers.Landlord & tenantEmployer & employeeParent & childTeacher & StudentFarwell v. Keaton, pg. 375New that Farwell was severally beaten, and if Siegrist would have aided him right away, Farwell would have survived.Siegrist alleged that there was no duty for him to aid others in peril, but the court held is that there is a special relationship between siegrest and farwell, and held that yes, that joint venture, or group venture. This is when you have a joint venture and are business partners or when you get together and for certain activities together and accomplish certain goals, there is an implicit understand (no contract, or something express), but it is implicit that the other members would come to your aid if you needed and to act reasonable toward the other person because of the special relationship. Sometimes must look at if at the time the injure started, was the purpose of the venture done? Had they accomplished what they originally wanted to accomplish as a group?Here, they hadnt accomplish their ultimate goal, and seigrist knews that Farwell needed the and. Also, voluntarily assuming a duty the court talks about. He thrust himself into the situation, so his actions wil be based on Public vs. Private DutiesWhat we have talked about so far has to do with he courts imposing an affirmative duty to act on a private entity Imposing an affirmative duty on a public entity can lead to economic consequencesThe agency suing will bear the negligence. If I make the choice of not acting reasonable, then I bear the responsibility.When you sue the government, it is paid by tax payers, so they can just spread the love, so they don't feel >>>Two situations where an affirmative duty to act may be imposed on a public entityThe public entity voluntarily acts to induce reliance by the plaintiff. A special relationship exists between the private citizen and public entity.Sometimes government through their actions creates a special relationship with people.DCA child and foster home example. So they have a duty of care to act reasonable in regards to those kids.Thompson v. County of Alameda, pg. 382 Did not have a young child target, he just said I will take a young childs life.Failure to warn police, parents in the areas, or mothers in the are.Court: no duty here, county is not liable. Rationale: no specific threat to public at large. Country does not have a special relationship to the public at large. Majority distinguish from another case regarding a specific threat which creates a specific relationship, but here there was not.Policy reasons: we would not have the government do that. If they know that a D is released from a jail, they don't have to issue a warning for every person that would be released form jail, particularly because of the stigma behind it. They would have to act reasonable for unspecified threats which is impossible, and impractical. Non specific generalized threat to public, v. a specific threat in which the county would have to warn the family, or the mother of person being threat.

NIED (Negligence Infliction of (Solely) Emotional Distress

Cause of action characterized by:Plaintiff is a bystandard to defendants alleged negligent act Plaintiff claims to have suffered emotional distressHOWEVER, plaintiff does not necessarily claim to have suffered any physical harm attributable to defendant's alleged negligent act (there is a cause of action if he P alleged that he)

Evolution of NIED LawThe Impact RuleRequires plaintiff claiming emotional distress injuries to have been physically impacted by defendants negligent conduct (eve if you were not hurt by it, physically, you need to prove that the mental distress caused severe physical disability. Criticisms:Denies recovery to even the closest of relatives who witnessed a loved one get injured by defendants negligent actCourts bogged down in determining when impact requirement was satisfied

The Zone of Danger Rule

Broadens the scope of who can potentially recover under NIEDDoes not require a plaintiff to be physically impacted by a defendants negligent conduct himself (no touching required, but they basically said if OP is so closely related hat they could ___ the injury, they could recover for NIEDHOWEVER, does require a plaintiff to be so closely related to the accident scene that he could have been injuredi.e. within the zone of dangerWhen do we draw the line?What the victim close enough? Criticisms:Courts again bogged down in making this subjective determinationTheoretically allows recovery for a relative who was physically situated close enough to have been within the zone of danger of defendants alleged negligent act, but did not learn of the physical injury to their relative until later.How do courts justify their recovery, but no to parents who watched their son suffer injury but were not physically impacted?

The Dillon Rule

Simply assesses the foreseeability of the bystandards emotional duress under the circumstancesDillon identified three distinct factors to be taken into consideration in determining whether a duty of care was owed in a given caseWhether the plaintiff bystandard was located near the scene of the accident (zone of danger idea in this element. It took away the idea that the D could have been hurt by being in the zone of danger)Whether the emotional duress was caused from the sensory and contemporaneous observance of the accident (it does not have to happen right there in that moment but it has to be contemporaneous, there cannot be a long lapse of time, P must be in the vicinity, they become aware and see the related close person injured.)Whether the plaintiff and the victim were closely related (relative immediate vicinity, no need to be blood related) This goes from jurisdiction to jurisdiction: some use the Final exam: hypo: can P recover for NIED: in the jurisdiction that follows the zone of danger, the Dillon factor, or any other.

The Dillon Cure-All?NIED law is still very controversial in many jurisdictions (not recognized in all jurisdictions)In regard to Dillon, some jurisdictions ignore the factors, some pick and choose what factors to use to justify a result, some treat all of them as a set of mandatory requirementsSome jurisdictions still do not recognize it as a cause of action at allResults still as random as predecessor tests (if you did a survey, I will be able to tell where it was observe, and when it was not)

Premises Liability

Premises Liability HistoryEvolved from English feudal societyWealth and power directly tied to the ownership of real propertyOne who entered upon the land of another was assigned a status category (and a title as to what you have are categorized as, like invitee, licensee)In school, I am an invitee. These categories often favored landowners against claims brought by the injured entrant There is more protection for the landowner, they have less of the duty of care that when you are an invitee.Less and less protection from the landowner. They are not a guarantor of safety. They don't have to guarantee that they the place is absolutely safe. Premises liability has status categories as to duty of care that the landowner owes.Even if I am an invitee and I fall in the floor, does not mean that I will recover. It is not a guaranteed thing.

Premises Liability TodayAmerican courts adopted the English common-law status categoriesIf given a short answer question: what the heck is this person in the land? This is the first answer to analyze when in a essay for premises liability. This is the first thing to analyze in the final. Either an invitee, licensee, etc. The once clear distinction between status categories has become blurred over time Today, premises liability law is one of the mostly litigious and diverse areas in all of torts lawRemember, a premises liability case is still a common-law negligence action like weve studied, just a special type

Three Status Category

Invitee:Most favored category of entrantPeople shopping in the mall, people in the movies.Requirements:1) enters onto the land of another at the express or implied invitation of the landowner (this is why all people shopping at the mall are invite. They did not get an invitation to shop there, or to go there, but just because the mall is open, they are free to walk and shop, to wonder. Restaurant who sells subs, or any other)2) for some purpose directly or indirectly associated with the business of the owner, or for some other public purpose (economic benefit test. You don't necessarily have to be there to make a purchase in order to be an invitee. Even if I just want to look around and go through, that is part of the business that they allow, and it is an indirect association. What is for the purpose that only benefitted the person entering or does it benefit both parties? Both need to be satisfied. 3) visit to mutual advantage of both partiesAn example would be buying gas at a gas station or browsing at a clothing storeLandowner cannot just seat there and not inspect for damages, or for violations. Things are there that cause a potential damage. I was in my office and we didn't know there was any danger as an invitee you will have to prove that you looked around looking for the dangers.

Invitee 2-Prong Duty of Care1) Use reasonable care in maintaining the premisesThis prong sounds very broad, but it is essential the requirement that a landowner make reasonable and periodic expect inspections of the premises for the purpose of discovering such hazards (this prong is very broad, and it sounds like the Rpp standard, but it is not) It sounds more broad than what it is. Reasonable and periodic to maintain the premises. Regularly inspect the premises. AND2) Warn or correct any latent or concealed perils of which the landowner has actual or constructive knowledgesomeone slipped and fail and what is litigated the P has to show that what they fell over was hidden. Was the condition open and obvious condition: they will no be able to recover. If you are walking in broad day light y ves un danger y caminas anyway, no recovery for P because they have a duty to be responsible. Walking to bathroom blindfolded, and slipped and fall on something, you will not get anything, but loose in attorneys fees, etc. it does not mean that P needs to be looking, but P needs to be reasonable, just responsible. Must show landowner that there was a defect, and thus, you should have realized that there was danger.It had to be something that the P would have not been able to discover.If you find something wrong with the premise, it can be subpoenaed.With constructed notice, the defendant should have know that this was a recurring problem.Ejemplo: they re did the entire skylight of the mall. The had loza or tile, and they got into litigation, and had many slip and fall cases, and they could get evidence that they had constructive notice of the fact that ppl were falling, and they should have corrected that a long time ago.

Licensee (Emergency personnel, social guests) Occupies a middle ground between invitee and trespasser Requirements:1) Enters upon the land of another with permission or consent of the owner, either express or implied 2) Visit for entrants own benefit, gratification, or advantage (not a usually beneficial situation, really connected with business)Examples are emergency workers, party guests, or entering store to ask directionsLandowner owes no affirmative duty to prepare the premises for entry by licensee, only to warn of hidden or concealed danger upon the premises of which the landowner has knowledgeLicensee owe no duty of care, so you cannot get where you need to go. They can warn seal or conceal danger. No duty to correct, only duty to warn. They don't have a duty to inspect or discover. If you are an invitee, it is more favorable to the landowner.

TrespasserLeast favored category of entrantPerson who enters upon the land of another without permission to do so Only duty imposed upon the landowner is to refrain from inflicting willful or wanton injury Si me quedo yo misma encerrada en la escuela cuando ya me tengo que ir: trespasserYou have no duty to unless there is a hidden danger.

VERY IMPORTANT: A landowners duty of care to an individual entrant is solely based on the classification of the plaintiff in one of the status categories. You are still are owed a duty of care even if you are a trespasser.

Who decides which status category? (duty of care are set)

Classification made by either the court or jury Where status of the plaintiff can be determined from undisputed facts the court will determine the appropriate category as a matter of lawHowever, if reasonable minds could differ as to facts that could affect classification, most jurisdictions will permit the jury to determine the applicable status categoryStatus categories are also subject to change An invited social guest may enter the premises as a licensee, but become a trespasser if they overextend their welcome beyond invitation

Landowners Non-Delegable Duty

The landowners duty of care in a premises liability case is non-delegable (it cannot be discharged, when they rent a space from, and they rent it from me to sell pizza, the landowner cannot discharge their duty of care to a vendor, tenant, or something else)This means that the landowner cannot contract away their duty of care to a 3rd party such as a tenant, vendor, etc.It also means that even if a landowner is not actually controlling, or even present, at the premises on a daily basis, they still owe plaintiff the applicable duty of care (they are not legally off the hook, but can have a side agreement where they can indemnify the landowner in which it make legal sense to contract away to pay for their duties, but they have to be at the table)Those in control of the premises, such as a tenant, also owe the applicable duty of care.In other words, the plaintiff can sue both parties This duty is always in the landowner.Landowner has a deeper pocket, and put a provision that they would pay anything for you, they are still on the hook.

Breach, Causation, Damages

This common law differentiation fairly standard in all jurisdictionsAgain, once the specific duty of care based on the status categories has been established, the landowners liability in negligence for premises liability is determined just as in any traditional negligence action that we've studied. The defendants breach of the applicable duty must be linked by both cause-in-fact and proximate cause to the claimed damages which must be establishedTraditional common law defenses based upon the plaintiffs own conduct (contributory and comparative negligence) and causation defenses are fully applicable.

Analyze the breach of the duty, and the causation.Rest of analysis stays the same. First we must establish who the P is either invitee, licensee, or trespasser. Do we need to establish the DUTY? For the breach, and the causation, do we analyze it as we normally would in last semester?

Premises Liability IISpecial Categories of EntrantSpecial Categories of EntrantTrespassing ChildrenPublic OfficialsSocial GuestsRecreational Premise UsersVictims of CrimeLessees of Real PropertyTrespassing Children ( the child is still a trespasser. What happens is that we change the level of care)

Because of tender age, children have traditionally been treated differently than other types of trespassers. (they want to give children a bit more protection than they would give to trespassers)

Common names you will here for this area of lawAttractive nuisance doctrineThe playground theoryThe dangerous instrumentality doctrine(if we here to this terminology, they are all referring to this status, and court usually give it a higher standard)Doctrine attempt to avoid harsh effects of low level of duty owed to trespassers

Attractive Nuisance Doctrine (dangerous instrumentality doctrine)Childs status as a trespasser is NOT conclusive as to landowner's duty of care owed (just because the landowner trespassed to sell cookies, we will protectect them, and take into consideration she was a trespasser.Simply one factor

A landowner will owe a duty to use reasonable care if:The landowner has reason to anticipate the presence of young trespassing children on the premises (prior accident, testimony, burden that P has to show) AND The danger created by some dangerous condition existing on the property is of such a nature that the injured child is not likely to appreciated it because of his AEI (age, experience, intelligence) (because of the childs age, they could have not appreciate the conditions, they could not tell or feel the danger)These 2 requirements must be met.Attractive Nuisance Controversies

The current Restatement of Torts requires that the injury must be caused by an artificial condition (not a natural condition)Considerable litigation regarding what is natural vs. artificialInconsistency from jurisdiction to jurisdictionInconsistency within jurisdictions from one case to anotherSome jurisdictions have refused to make this a requirement The Restatement also extends protection to children of all ages including adolescents (much harder for P to get out of the category, so the older, the harder it becomes to show that)Historically, there was an additional requirement that the injury causing device lured or enticed the young child onto the property (to do the trespassing act in the first place) No longer a requirement in a majority of jurisdictionsHowever, in a practical sense captured in requirement that landowner must foresee the presence of trespassing childrenPublic Officials

Public officials who enter onto the land of another while preforming their official duties are traditionally classified as inviteesPostal workersTrash collectors

The rationale is that the landowner typically derives a benefit related to these official functions (you pay tax dollars, and they come in and do their job)

*However, police officers and firefighters are generally treated as a sub-group that are NOT afforded invitee protection (even thought you are paying your tax dollars, and you get a great benefit)

Firefighters Rule (will not be held to a high standard)

Firefighters and police officers generally treated as licensees

RationalesIt would be unfair to impose a high duty of care upon landowners to protect such entrants against injuries due to the unusual and unexpected nature of the entryThese types of public officials have been specifically trained to confront dangerous situations as part of their occupationSpecially compensated based on their high risk occupation

Social GuestsOne who has been expressly invited onto the premises for a social, non-business purposeMajority rule is to treat them as licenseesEven where guest provides some service or incidental benefit to the landownerRationaleAn invited social guest should not be entitled to any greater protection than a member of the hosts own familyCriticismsHow can someone who is on the premises with an express invitation be categorized as a licensee ? (almost no scenario in which it would occur)

Some courts have expanded the scope beyond purely social purposes meaning more plaintiffs get classified as licensees

ResponsesReclassifying all expressly invited guests as invitees, thus elevating their status (some jurisdictions have this)Stretching the term economic benefit to the host as a result of the guests presence on the premises, thus elevating their statusSome jurisdictions have either through common law or statute abolished the distinctions between licensee and invitee (in practice, they become subjective in how they are apply, so they got rid of all the status categories. They got rid of it all, and just have the RPP, unless it is a trespasser.(unless you can show you have your express invitation, you will be considered a licensee)

Recreational PremisesOne is gratuitously permitted to enter onto land of another for recreational purposes (generally those are licensee, because when you entered a por ejemplo hunting club, show up and the landowner does not excersice care on that land, so we are not going to hold them as invitee, just as licensee)Many states have enacted recreational use statutes that expressly designate such persons as licensees (the statutes specifically enumerate who is a licensee, and who is an invitee)RationaleTo classify as an invitee too high a burden on the landowner since often there is extremely minimal supervision over the premises

Recreational Use StatuesCharacteristics (usually clarified as a licensee?)List specific recreational purposes for which the statute appliesUsually only applies to outdoor recreational activities Statutory protection for the landowner only applies if the landowner does not charge a fee for the use of the premises

Victims of CrimesTraditionally, landowners did not owe a duty of care to victims of 3rd party criminal actionsRationaleA 3rd partys criminal action is unforeseeable to a landowner (so they can impose a duty of care to the landowner) The exception is that the criminal act is something foreseeable.

Lessees of Real PropertyCaveat Lessee!! Let the lessee beware

Most courts do not impose any common law duty of care at all on the lessor of a premises with respect to injured tenants OR their injured guests ( if I am a lessee of an apartment complex, the person who lease to me, there is not a duty of care owed to me)

However, (as you can probably guess by now with regard to any legal rule) there are a variety of exceptions to the general rule!

Exceptions to Caveat LesseeCommon areas in landowners exclusive controlHallways, parking lots, etc.(stairways, or something that the landlord typically maintain, then they owe me the duty of reasonable care)What a common area subject to litigationNormal status based duty appliesVoluntary Repairs by LandownerMust be made with reasonable careLatent Defects at the Time of LeasingHidden defects at the time of leasing that the landowner had actual or constructive notice of must be disclosed

MULTIPLE DEFENDANT ISSUES

Joint and Several Liability ( to ensure the P gets pay as quickly as they can)A doctrine by which each liable Defendant has full responsibility for the full amount of damages (P is showing breach against more than one D) some percetenga in more than one D.Meaning Plaintiff can choose which Defendant to collect all or part of the judgment from, regardless of each Defendants share of liability, until Plaintiffs judgment amount is satisfied (P gets the choice of who to pick from , y le cobra a quien ella quiere) (ella escoge el que tiene deep pocket, o el que ella quiere) whatever the judgment was in heir favor, they can collect. They can collect the full amount of the judgment but no more)The Defendants can then pursue actions among themselves for their respective share of the payment IOW the proportion each will contribute to the payment amountConditions Required for J&S Liability1) Concurrent causes that act on Plaintiff to produce injuryEven when those causes are independent actors(if I was in my about and somebody rear ends me, and someone else does, then 2 impacted me at the same time.)2) The Plaintiff cannot separate which portion of the injury is attributable to one Defendant versus anotherP cannot separate the injuries.3) Each cause on its own could have produced the entire injurysimilar to causation aspects. Multiple impacts that can tell what injury each produced on their own.

Once all these are met, the P can decide who to go after. 2 forces, cannot separate the injuries, and both could have caused the injuries.

Tortfeasors Acting in ConcertJointly and severally liability will also apply when two or more tortfeasors act in concert or agreement to injure plaintiffEven if I could not technically separate the injuries, if I shows that the D were acting in concert, I can still file to Joint and several liability)Under this specific circumstance, there will be joint and several liability even if the injury is divisible

Express agreement is not necessary, just a common design or understandingSatisfactionPlaintiff recovers full payment from one tortfeasor either by settlement or judgmentUntil satisfaction is achieved, Plaintiff may proceed against other jointly liable partiesOnce satisfaction is achieved, Plaintiff may not recover further against any other tortfeasor IF D has any issues about paying, or getting reimbursed from the other side, that is on them.ReleaseA surrender of Plaintiff 's cause of action against the party to whom the release is givenThe P can settle with one party, and release the other parties. If they settled with one tortfeasor, the P can continue the lawsuit as nothing ever happened.In most states, a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreementRather, the claim against the others is reduced to the extent of the amount stipulated to in the release In other words, other tortfeasors still liable for full amount originally jointly and severally liable for minus the amount paid by one tortfeasor in the releaseIf P settled for 9k, and collected 5k from one D, then the P can go after the rest against one D, or divided. Up to P

Issues Between Just the DefendantsContributionIndemnityEach defendant bears some liability but must be determined who is actually going to pay some or all of amount

Even if D are severally liable for the full amount, the Ds can sue the other for the loss. Jurisdictional dependent on how it is applied. If there are co-defendant, they file a cross claim, a complain against your co-defendant.

ContributionIf a tortfeasor, required to pay damages under joint and several liability, pays more than her share of damages, then that tortfeasor has a claim against the other jointly liable parties for the excess she paidAllows for apportioning of responsibility among at fault parties (you are proportioning the payment, what amount should I ship into the pot, and you should ship into the pot)Defendant will pay depending on their liability of the case)Comparative Contribution (majority): imposed in proportion to relative fault of tortfeasorsP suffers $100,000 in damages from combined negligence of DI and D2 who are joint and several liable. Jury determines that Dl is 80% at fault and D2 is 20% at fault. Plaintiff recovers all $100,000 from D2. D2 can recover $80,000 from Dl.Equal Shares (minority): All tortfeasors pay equal shares of damages regardless of relative degrees of faultD2 can recover $50,000 from Dl.If one of D is insolvent? Then they don't payIndemnityDoes not apportion the loss, but shifts the entire loss between tortfeasors.Even if I pay the whole to P, I can get indemnity for the full amount.Examples:ContractIf clear agreement to indemnify another against consequences of his own negligence.Express provision identifying. Ex. Sleep and fall case. We are under K so long as it relates to the claim. Mall has K agreement never comes to litigation, parties know. Vicarious LiabilityIf one must pay damages caused by another simply because of his relationship to that person (employer-employee or Landowner-IC) then can possibly seek indemnification from that true at-fault partyYou have an indemnification because of your relationship. Even if you do something negligent with the truck, and doing something related to driving that truck. Based on the possibility, they can get idemnificaiton.Strict Products LiabilityIn the case of defective products, everyone in distribution chain has liability to Plaintiff, but each entity in chain has potential right of indemnity against all others in chainExample: retailer who relied on manufacturer for products condition(Anyone in the chain of distribution is liable. Manufacturer, wholesaler, all are liable for the defect of that product. If it is a defected product.Indemnity: you have to take it all. )

Vicarious LiabilitySituations under which derivative or imputed liability is imposedPerson A commits a tortious act against Person B, and Person C is liable for this actSuch a situation arises when the tortfeasor is in a special relationship with the party who becomes liablePerson A is in a special relationship with Person CEmployer-Employee (respondeat superior)Partnerships and Joint Ventures Parent-child alsoUnder such circumstances Person C will have liability even if Person CHad no active physical role in the actDid nothing to encourage or aid the actTried to prevent or discourage the act

Doctrine of Respondeat Superior

Essentially the liability of the employer for the acts of the employeeEmployer will generally be vicariously liable for tortious acts committed by employee HOWEVER, tortious acts MUST occur within the scope of the employment relationshipSubjective view. The jury looks at this standard.

Scope of the Employment RelationshipControl TheoryFocuses on what the injury inflicting employee was doing at the time of the injuryWas it within the normal course of the employees duties?Was there a direct order to employee? What the employee was doing at the time of the injury. Enterprise TheoryFocuses on the purpose of the injury inflicting employees actionsDid it at least in part further some legitimate purpose or motive of the employers business?Even if employer did not give an order, if employee was doing something to further the purpose of the business, most courts will uphold that the action falls under the scope of the employment. The purpose and the motive.CasesFruit v. Schreiner, 502 P.2d 133 (Alaska 1972)Employer told Fruit to attend to as many activities as possible during the conference. He goes to a bar, and people were not there, and he left to his hotel, and on his way back, his car went out of control, and he crush Ds leg in the accident. They found equitable liability and also found independent negligence. Trial court concluded that fruit and Equitable were liable.The court of appeals held that Equitable was liable for Fruits activities because Equitable created the conference himself. Under the control theory it might fail, but the enterprise theory, he had the idea that he was to go on his own because he was furthering the business purpose. He was reimburse for his travel, thus the court reasoned that he was under the scope of employment. Frolic and detour: had he taken a detour from his scope of employment, the court would have reasoned different. Policy behind it: they have deeper pockets, and they are in a better position to assume the expenses of an accident, and they have insurance. Also when you have the business you have that risk, and when you are benefitting from the benefit they took, then you are doing well, and you should at least bear the risk of taking the loss. Buitrago v. Rohr, 672 So.2d 646 (Fla. 1st DCA 1996)P sued Donovan because even if Donovan was not an employee, he was an agent. Donovan was an agent of Rohr, and Rohr was dictating what Donovan did. Donovan filed a motion for summary judgment alleging that a reasonable person would not come to the conclusion that he was an agent.Trial court ruled that he was an independent contractor, and the court explains a 10 factor test to determine if he was acting as an agent or as a contractor.Factor # 1: most important, Donovan just indicated Rohn where to put the balloons and where.Factor # 2: totally distinct from Donovans business. Any reasonable mid could see that he was an independent contractor.

Specific ActionsStill Within Scope?Coming and GoingFrolic and DetourI do something personal within the scope of employment. Like getting a manicure and pedicure while work hours. Intentional Torts

Coming and Going Rule

Respondeat Superior doctrine is generally NOT applicable while the employee is coming from or going to workEmployer NOT liable for negligence of employeesOrdinary use of streets and highways usually required for employer to obtain benefit of the coming and going ruleExceptions to Coming and Going RuleSpecial Hazardsif the employee is subject to this.Special Errand or Dual Purpose

Employer compensates employee for time and travel expenses, then they open themselves up to vacarious liability.

Special Hazard ExceptionEmployee must be subject to a hazard not normally encountered by the regular traveling public. ( it must be something truly dangerous)Example: Transporting explosivesExcessive distance alone does not constitute a special hazard

Special Errand ExceptionRespondeat Superior doctrine IS applicable where ordinary use of streets and highways specifically required of employee in performance of duties to employerExample: An employer requires the employee return home to pick-up special tools while the employee is traveling between job sites, then that become a special errands. If an accident happens in the interim, there is vicarious liability on the employer.Factors- Time and trouble of making the journey- Special inconvenience, hazard, or urgency in making the journey

Courtless v. Jolliffe

D raised the coming and going rule, and because of that we don't have any vicarious liability in this matter.P appealed that and alleged that they did stop to do something work related to get the shock absorbers. Even though he owned the vehicle, the employer paid for the maintenance and repairs, and would give him 400 monthly for the payment of the truck. He got free gas, thus the court rules that it qualifies as a special errand exception of the coming and going rule.Court of appeals reversed and held that the he was acting under the scope of employment.

Frolic and DetourOccurs when an employee is clearly traveling for his employer within the scope of his employment, but temporarily departs and deviates from the employers business to do pursue a personal goal, such as an errand or visit a friend, and commits a tort during the course of that deviationIf the deviation was significant in time and geography, then the employer will not be liable (this is what court will look at)If the deviation was minor in time and geography, then the employer will be liable ( they might still find you in the course of employment)Nail place example: if nail place is far away.Stopping to pay a bill and getting in an accident: usually not taking out of the scope of employment.

Intentional TortsGenerally, an employer is NOT liable for the intentional torts of his employees.If a battery or assault is committed by employee, employer will not be vicariously liable. Exceptions1) Force is authorized in the employment (bar bouncer)2) Friction is generated by the employment (bill collector) if they go over that line, then employer might be liable. Sunseri v. PucciaThe was the business component, and vicarious liability might attach, and the jury should consider that.Owner was there and saw it, and there could be direct negligenceHe could have prevented it, but he did not.Partnerships and Joint VenturesEach 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 partnership or joint ventureA joint venture is similar to a partnership but more limited in scope in terms of time and purpose. Still requires:Business purpose or sharing of expensesMutual right of control

Employers Own ActionsRemember, an employer can have additional liability for any of its own independent tortious actions regardless of any vicarious liability imposed against itA cause of action for negligent hiring, supervision, or retention of employees or independent contractors is not the same as vicarious liability

Situations Where Vicarious Liability May Not Be ImposedIndependent ContractorsParent for ChildBailor for Bailee

Independent ContractorsIn general, a principal will not be vicariously liable for the actions of an independent contractorExceptions: The independent contractor is engaged in inherently dangerous activity Excavating, blastingThe owners duty for that particular type of activity is by law nondelegable or non-transferable Business owners duty to keep its premises safe for customersParentsParent is generally not vicariously liable for the tortious conduct of the child Exceptions:Majority view is that parents liable for the willful and intentional torts of their minor children up to a certain dollar amountChild commits a tort while acting as the agent for the parentsExample: Parent vicariously liable if child is in an accident while running an errand for his motherParents own independent negligence (not vicarious)Allowing child to use a dangerous objectFailing to control or mitigate violent or destructive conduct after the child has exhibited such conduct in the pastAllowing child to play with children he previously attacked Vicarious Liability:Automobile OwnersApproach #1: General rule is automobile owner is not vicariously liable for the tortious conduct of another driving his automobile.Approach #2: Family car doctrine - owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.Approach #3: Permissive use" statutes imposing liability for damage caused by anyone driving with the owner's express or implied permission.Dram Shop Vicarious LiabilityCommon law: no liability on seller of alcoholic beverages for injuries, whether to customer or 3rd party, resulting from the customer's intoxication"Dram shop Act" States Created cause of action for any 3rd person against seller of alcoholic beverages injured by an intoxicated customer Negligence States Rather imposing liability based on vicarious liability principles, liability is based on ordinary negligence principles, namely the foreseeable risk of serving a minor or obviously intoxicated adult

Defenses Based on Plaintiffs Conduct

DefensesContributory NegligenceComparative NegligenceThese 2 are about the same conduct, the Ps conduct.Assumption of the RiskExpressImplied

Contributory & Comparative Negligence Commonalities (similarities)Focus is on Plaintiffs failure to reasonable care for his own safetyDid P act with reasonable care for his or her own negligence.Did P act as an ordinary reasonable prudent person. This failure is an actual and proximate cause of Plaintiffs injuriesHave to have a showing that whatever I am alleging was caused by the injury that occurred.Defendants affirmative defense to plead and prove IOW Plaintiff not required to plead and prove he was using due careRemember, affirmative defense operate to defeat or reduce Plaintiffs recovery, even when Plaintiff first proves their prima facie caseThese are raised by D, and the burden of P is on the D. D had a duty, D breached that duty, and D suffered damages. D can raise the Affirmative defense.Usually a jury questionNot in the proper province of the court to rule. Defenses to negligence, not intentional tortsThese relate to claims of negligence. If P bring a battery action against D, then this theory cannot be used since these are only for negligence.

Contributory & Comparative Negligence DifferencesContributory Negligence acts a complete bar to Plaintiffs recoveryIn other words, if a jury finds Plaintiff 1% at fault for the accident, then Plaintiff is barred from recovery. Comparative Negligence makes it possible for a Plaintiff to recovery even if Plaintiff bears fault for the accidentUnlike contributory negligence, in which even the smallest fault assigned to P will prevent recovery.

Two Types of Comparative NegligencePUREMODIFIED

Pure Comparative Negligence (we have it in FL) Being the this type of jurisdiction helps the P.Plaintiff will be allowed recover as long they prove some percentage of liability on the defendant, regardless of Plaintiffs own fault It can be 40/50, 50/50, etc.IOW, unless a Plaintiff is 100% at fault for own damages, Plaintiff will be allowed to recoverAlso referred to as straight percentagesThis approach is followed in Florida Consequences for potential recovery of fees and costsModified Comparative NegligenceA party will be totally barred from recovery just as in contributory negligence IF their percentage of fault exceeds a specified level, usually a percentage set by statute (as long as in that amount or below, we will allow recovery but not if it is more)ExampleA statute allowing a Plaintiff to recover as long as her percentage of fault does not exceed 50%Ask this question: does it exceed 50%, or exceeds, or is it below 50%? Must read the statute clearly.For further discussion of justification of this approach see the Bradley decision on page 506

Justifications for DefensesMoralPlaintiffs own negligence cancels out the Defendants negligence and keeps undeserving Plaintiff from being unjustly enriched.If we didn't allow some fault on the P, that would not be fair since they have a substantial amount of fault, and they would get unjust enriched if the defense would not be allowed.Economic Plaintiff may be party who can more easily and cheaply avoid an accident; therefore, reducing or denying recovery when Plaintiff fails to do so provided incentives to take precautions.Not only do you want to incentivize the D, but you also the P is in a position in which they are better situated that D to avoid the harm coming about, so you want to make sure that there is something that would hold them accountable for doing that.Even if Plaintiff is in an all-or-nothing contributory negligence jurisdiction, Plaintiff has potential escape from harsh effects of that rule through last clear chance doctrine

Last Clear Chance DoctrineEven if P had partial negligence for negligence, they could escape if they could prove that even thought they were negligence, D had the last clear change to avoid accident completely. Applies in Contributory Negligence jurisdictionsThe idea is that even if Plaintiff is partially negligent for the accident, the Plaintiff can still recovery if Plaintiff can prove Defendant had a last clear chance to avoid the accidentExamplePlaintiffs car is parked and partially blocking the road before Defendants vehicle collides with it. Plaintiff is clearly negligent, but would still be able to recover to some degree if Plaintiff can show Defendant had seen Plaintiffs car, realized it was blocking the road, but simply failed to successfully steer around the car.P was helpless.

Why Go From Contributory Negligence to Comparative Negligence?All or nothing aspect of Contributory Negligence too harshUnfair result to let a negligent Defendant escape without liabilityRationale doesnt make sense: if the Plaintiffs fault makes it unfair to throw the entire loss on the Defendant, isnt it unfair if the Defendant is negligent to leave the entire loss with the Plaintiff?Stehlik v. RhoadsSeat belt defense: Assumption of the RiskCommon law notion that there is no legal injury to one who consents to bear a riskAppears very similar to Contributory and Comparative Negligence, BUT one key conceptual differenceContributory and Comparative Negligence are focused on the reasonableness of Plaintiffs actionsAssumption of the Risk is focused on Plaintiffs free will in encountering a known risk Quote page 527

Defendants based on Ps conduct-play close attention because it can be confusing.Contributory negligence focuses on reasonableness. But assumption of risk; can you see in the fact pattern that there was an appreciation of P about the danger of the situation. Not because they were unreasonable, but because they knew, or notices. Two Types of Assumption of RiskEXPRESSIMPLIED

Express Assumption of the RiskPlaintiff expressly agrees to bear a risk. A contract usually, a release that you sign when you go sky diving. Exculpatory clauses, things that takes liability away from potential D. Usually by contract in exculpatory clause provisionsExample: a release of liability agreement one signs before a given activityCourts have discretion whether to enforce the express agreementsBalance parties freedom to make a contractual agreement with whether such agreements undermine the safety and compensation policies of tort lawGive parties the freedom to engage in dangerous activities even if they want to participate. However, in some dynamic there is public policy behind it which focuses onCourt defaults rule is that as long as there are 2 freely contracting parties, the release is valid.

Exculpatory ClausesGeneral rule is that exculpatory agreement between two freely contracting parties will generally be held validThree exceptions to this general rule1) Party may not contract away its liability for intentional harms, reckless conduct, or gross and wanton negligence (court may not enforce that)2) When one party has a decided disadvantage in bargaining power3) Transaction involving the public interestUtilitiesIndustries regulated by the government.Common carriersInnkeepersPublic servicesWolf v. Ford

Implied Assumption of the Risk ( I understand the risk and I will go forward) I stepped into the football field and there is a high probability that I will get hit.Plaintiff voluntarily encounters a known riskConstitutes an implied agreement to release from liability a party that created the riskImplied assumption of the risk often arises in the context of sporting eventsParticipants: Simply violating the rules of the game does not trigger liability, defendant must act reckless or intend harm beyond normal activity inherent in gameSpectators: subjectively aware of the risk (i.e. familiarity with the game)? Does it matter where they are located?

Murphy v. Steeplechase Amusement Co., Inc.You knew about the ride, you were aware of the risk even with the best padding in the world anyone would have been injured by steeping in the conveyor belt. If I operated the Ice Skating ring I assume the liability on the defendants activity.Conscious awareness of the risk and decision with your free will. I know there is a risk, I am out with my friends, having a good time.

Assumption of the Risk in Contributory & Comparative Negligence Jurisdictions (you are either going to be in a comparative or contributory jurisdiction)In Contributory Negligence Jurisdictions, a finding of Plaintiff's Assumption of the Risk acts as complete bar to recovery, just as a finding of Contributory NegligenceIn Comparative Negligence jurisdictions a split existsMajority View: Assumption of the Risk principles are simply used to reduce Plaintiffs recovery further in the Comparative Negligence scheme, it does not act as a complete bar to recoveryMinority View: Assumption of the Risk is a separate doctrine and serves as a complete bar to recovery, regardless of Plaintiffs amount of Comparative NegligenceIf you should that assumption of the risk

See Davenport on page 524 for further discussionMirar.

Common Law Strict LiabilityLiability Without Fault

PRIMA FACIE CASENature of defendant's activity imposes an absolute duty to make safe (if D is taking part in a certain part of activities, it changes the duty of care) If D is performing a unique activity, D has to excersice his duty of care. The dangers of duty of it is very dangerous.If you can say that the defendant behavior falls within the category of unique (dynamite, reasonable, they tried to make it safe but the accident still happened, they are still liable even if they tried to make it safe.)Contrast with negligence duty to act reasonablyDangerous aspect of the activity is the actual and proximate cause of the plaintiff's injuryPlaintiff suffered damage to person or property

AnimalsTrespassOwner is strictly liable for the damage done by the trespass of his animals as long as it was reasonably foreseeableGenerally no strict liability for trespassing household pets ( wild and domesticated, yes, strict liability) if family dog gets out and cross and goes into other land, no strict liability.

Personal InjuriesOwner of wild animals strictly liableStrictly liable even if he came into court an testify that he did everything he was supposed to, he is still liable.

Owner of domestic or farm animals not strictly liableException - liability attaches if owner has knowledge of particular animal's dangerous propensities beyond what is normal for that species, even if no specific history of attack by that animal. (outside of what it is normally expected, if animal has an attack, the other side Public Duty Exception to Strict LiabilityNegligence must be shown if landowner is under public duty to keep the animals (like a zookeeper)If you are charged with maintaining wild animal, in order to be liable, they would have to prove negligence against you

Dog Bite Statutes Only applicable to dogs (certain breeds of dogs)Strict liability in personal injury actions even without prior knowledge of dangerous characteristics If dog statute was implicated, it would tell you what type and the standard)

(if we are imposing a strict liability there has to be :ABNORMALLY DANGEROUS ACTIVITIES An activity that involves a substantial risk of serious harm to person or property no matter how much care is exercisedWhether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict or summary judgmentBecause there is no factual dispute sometime, the court decides that whether it qualify as an abnormal dangerous activity or not. Motion of directed verdict sometimes. As long as P comes and shows some injury, they can win.

Abnormally dangerous activitySix Factor Test (most jurisdictions) memorize for test.1) Does activity involve high degree of risk of some harm to a person, land, or chattelrisk involve. Hulling dynamite.2) Gravity of harmif something goes wrong, how severe would the harm be to that property. Serious bodily injury of death, or severe. Gravity or depth of harm that will result from this activity.3) Can the risk be eliminated with the use of reasonable caremost important factor. Based on nature of activity, we will impose an absolute to make safe. 4) Whether the activity is a matter of common usageis this the normal thing that usually takes place. 5) Whether the activity was inappropriate in the place it was carried out

6) The value of the activity to the communityeven if activity itself is very dangerous, if it provides a safety for a particular group of people.

Court will look at these, and then decide whether it is or not an abnormally dangerous activity.

Limits on Strict LiabilityForeseeable PlaintiffsDuty owed only to "foreseeable plaintiffsPersons to whom a reasonable person would have foreseen a risk of harm under the circumstancesGenerally, no strict liability imposed on a defendant whose blasting activities hurled rock onto a person so far away that no reasonable person would have foreseen a danger

Limits on Strict LiabilityNormally Dangerous PropensityFor strict liability to attach, the harm must result from the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity In other words, the harm must flow from the "normally dangerous propensity" of the condition or thing involvedExample: Ds dynamite explodes and causes burns to P, then strict liability Compare: P trips over Ds stick of dynamite, no strict liability (but possible negligence)

Defenses to Strict LiabilityContributory Negligence StatesUnknowing contributory negligencePlaintiff's contributory negligence is no defense if the plaintiff simply failed to realize the danger or guard against its existence . Knowing" contributory negligence / Assumption of the RiskA defense to strict liability in contributory negligence statesPlaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity. Example:P knowingly and unreasonably tries to pass D's dynamite truck on a sharp curve, causing it to turn over and explode. No matter what you call it with regard to latter two defenses, P cannot recover.

Defenses to Strict LiabilityComparative Negligence StatesSimply apply the same comparative negligence rules that apply to negligence cases.

Sinclair v. Okata

Siegler v. Kuhlman

Why should strict liability should not be imposed.

Other side-How many have accidents, how many have gas spills, and how many injure others?No counter argument to element 2 since I don't want to be incredible. I don't want to make an argument just because, even if it is bad.4,5,6 this is not an abnormally dangerous activity. There was not risk in the behavior.

Products Liability IOverview& Types of Defects

Products LiabilityBASIC DEFINITION:The liability of a supplier of a product to one injured by the product

NO Requirement of Contractual Privity Between Plaintiff and Defendant (end user can end up suing the wholesaler, even if there was no interaction between the wholesaler and end-user. No contractual relationship.What is privity A contractual relationship exists between parties, such as a direct sale by the defendant retailer to the plaintiff Since privity is not required, products liability lawsuits can proceed in these examplesPlaintiff buyer can sue a wholesaler or manufacturer rather than the retailer who sold the product to the plaintiffInjured plaintiff sues retailer. However, plaintiff is not the buyer, but 3rd party in later possession of product3rd party in later possession can sueDefectsUnder any products liability theory, plaintiff must show that the product was "defective" when the product left defendant's control ( in order to bring a suit)Types of Defects1) Manufacturing Defectsremember it is about a defect because the specific product that hurt the plaintiff in the case was defective because it was different form the other products. There was fault with the particular product they got. Must show it was different form the other products and it was more dangerous. Variations in the one you got. Defective in a way that makes it unreasonably dangerous. Beyond the expectations of ordinary consumers. 2) Design Defectsejemplo de la sopa con el eggshell inside. They could not pinpoint who was at fault, so they sued everyone in the line. 3) Warning Defects

Manufacturing DefectsOccurs when a product emerges from a manufacturing process:1) Different from the other productsAND2) More dangerous than if it had been made the way it should have been to the extent that it becomes "unreasonably dangerous or dangerous beyond the expectation of the ordinary consumerDefective food products treated as manufacturing defects

Ford Motor Company v. Gonzales(Page 708)

Design DefectsAll the products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packagingThe entire line may be found defectiveThere some defects that go across the board. Mechanical feature, or packaging. Design defect is about the mechanical use of the product. There is something about the product that makes them dangerous. The have to show by the way these products were made, and they have to show that there is a feasible design defect. Court look at feasible alternative design that the defendant could have done.Plaintiff usually must show a economically feasible alternative design (less dangerous modification) was available

Feasible Alternative FactorsUsefulness and desirability of the productAvailability of safer alternative productsDangers of the product that have been identified by the time of trialLikelihood and probable seriousness of injuryObviousness of the dangerNormal public expectation of dangerAvoidability of injury by care in use of product through instructions and warningsFeasibility of eliminating the danger without seriously impairing the product's function or making it unduly expensive.

Brown v. Superior Court (Page 723)If P can show that there an alternative design that could have been made but they did not have the means to and it would have been to expensive, the court will not have to do that.

Can a drug manufacture be held strictly liable for a defect with a drug even when they manufactured the drug, or should we take into consideration.

The first test we have to look at is the ordinary consumer test to see if product is dangerous.

Warning DefectsA product must have clear and complete warnings of any dangers that may not be apparent to users.Warning must be disseminated in a manner so that it will reach the end users of a product.A common ladder that is covered with instructions regarding how to set-up an use. Court looks to see if there was an instruction manual.Compliance with federal labeling requirements does not preempt state warning label laws ( if they have requirements that go above and beyond the state, they are required to have the federal label on)

Learned intermediary RuleArises where end user relying on someone elses expertise with regard to productWarnings do not have to go to end user, but the learned intermediaryMost common in cases of prescription drugs and medical devices where general rule is that warnings need not be supplied to the patient; only to prescribing physicianWhen you go to doctor, you are not dealing with retailer. Medical devises or prescription drug. These drugs are produced and put out in the market, and the manufacturers don't know that the person who is going to do that is the doctor, so they are more properly situated to (the doctor) so the warning should go to physician instead of to the patient itself. In exam: who did the warning go? If to doctor, the duty has been filled.

Jackson v. Coast Paint & Lacquer Co. (Page 733)

So highly flammable, the floor.

Government Safety StandardsProduct is deemed to be defective in design or warnings if it fails to comply with applicable government safety standardsIf you can show that products does not comply with these government design, you will be found liable. BUTProduct's compliance with applicable government safety standards is evidence, but not conclusive, that the product is not defectiveIf the products do meet these standard, does not mean that they are not liable and not a defect.

Is the Defect Really a Defect? Misuses of a productCourts require suppliers to reasonably anticipate foreseeable misuses of the productManufacturer of liquid detergent must reasonably anticipate a child may try to drink contents, so need child-proof topThis is why we see safety caps on things to not anticipate that a child grabs and drink something that is poisons.Scientifically Unknowable RisksUsually no liability for manufacturer of new drugs that caused dangerous side effects that were impossible to anticipate or warn against Majority view. No strict liability for new drugs that cause side effects unless you know or should have known of the risks.AllergiesIf allergy sensitive group is significant in number, manufacturer must provide warnings (then and only then) (historically view)Modern trend is warning is required regardless of group size

Products Liability Part 2

Five Theories of Products Liability

Plaintiffs can prove products liability under five possible theories of recovery:Intent: rareNegligence: DES brown v. superior court, court had to decide even if we had a design defect with drug that causes child birth defect, are we imposing strict liability standard. Required the P to proof or should have knownStrict liability: most. Automatically liability, where the P has to show that a party was in the chain of distribution and injured by a product and they cannot recover.Implied warranties of merchantability and fitness: other ways when product violate the imply warranty.Representation theories Express warranty: you made an express warranty made.Misrepresentatio:n of fact, falsehood.

LIABILITY BASED ON STRICT LIABILITY

Prima Facie CaseAbsolute duty owed by a commercial supplier (if one shows that they were hurt by defective product, then they have an absolute duty of care) Commercial supplier is made by different facts.Production or sale of a defective productManufacturing defectDesign defect: warning defectJackson v. Coast Paint & Lacquer Co. (pg. 679)Actual and proximate causeSimilar to negligence conceptsDamagesMust show personal and/or property damagesPure economic loss is not recoverable, there are some exceptions. Monetary loss is not enough. Strict liability, economic loss not allowed. Must show the one of the 2 above.

"Commercial Supplier"A commercial supplier of a product is not a casual sellerSomeone who knits as a hobby and sells a sweater to a neighbor is a casual seller, not a commercial supplierIf I have a problem that talks strict liability action, first thing to ponder is whether it is a commercial supplier, or a casual seller?Casual seller: knits a sweater to neighbor.

Examples of commercial suppliersManufacturer RetailerAssemblerWholesalerIncludes sellers of used products that have been reconditioned or rebuilt.

Strict liability extends to any commercial supplier in the chain of distribution. (can be manufacturer, wholesaler, retailer) very difficult to pin point who caused the defect.

Protection for buyer, buyer's family, guests, friends, and employees. Even protection for foreseeable bystanders. We dont have to have privity. Not requirement in premises liability action. If someone was a guest at a buyer, even if guest does not privity with coffee maker, they can bring strict liability action against the retailer.

Allenberg v. Bentley Hedges Travel Serv. Inc.

Products and ServicesStrict liability is imposed only on one who supplies a product, as opposed to one primarily performs a serviceIf hurt in a bus accident due to driver incompetence, then cause of action is in negligenceIf hurt in a bus accident due to some part of the bus malfunctioning, then cause of action is strict products liabilityProduct must also not have been substantially altered for strict products liabilityRoyer v. Catholic Medical Center

Defenses to strict products liability claims. Contributory Negligence StatesOrdinary contributory negligence is not a defense where the plaintiff merely failed to discover the defect Voluntarily assumption of risk is a defenseComparative Negligence StatesComparative negligence rules applyDisclaimers of Liability unenforceable in strict products liability cases if personal injury or property damage has occurred.

Daly v. General Motors Corp

IMPLIED WARRANTIES MERCHANTABILITY AND FITNESS

Implied Warranty of Merchantability1) Goods are of equal quality to goods that are generally acceptable among those who deal in similar goods 2) Goods are generally fit for the ordinary purposes for which such goods are used

Implied Warranty of Fitness Seller knows or has reason to know:1) The particular purpose for which the goods are required2) That the buyer is relying on the seller's skill or judgment to select suitable goods

General RequirementsApply to the sale of goods under U.C.C.Plaintiff need not prove any fault on defendant's part if a product fails to live up to the standards imposed by the implied warrantiesNo direct contractual privity required between a buyer and seller, wholesaler, etc.But most states still require horizontal privity and only extend implied warranty protection to a buyer's family, household, and guests who suffer personal injury

Disclaimers & DamagesDisclaimers of liability for breach of implied warranty must be specific and are narrowly construedContractual limitations on personal injury damages resulting from a breach of warranty for consumer goods are prima facie unconscionableIn addition to personal injury and property damages, purely economic losses are recoverable in implied warranty actionsHenningsen v. Bloomfield Motors, Inc.

DefensesAssumption of RiskBars recovery only if plaintiffs uses a product that plaintiff knows violates warrantyContributory Negligence StatesPlaintiffs failure to discover a violation of warranty does not bar recovery Comparative Negligence StatesPlaintiffs damages award is reducedNotice of BreachThe U.C.C. requires that the buyer to give the seller notice within a reasonable time after the buyer discovers or should have discovered the breach

Express WarrantiesInvolves an affirmative representation by the defendant beyond the act of distributing a productPromise to the buyer relating to the goods that becomes part of the "basis of the bargain" Plaintiff need not show fault of the defendant, but only that a breach of the warranty did in fact occurDefendant advertises its suntan lotion as being completely safe for sensitive skin. Even if there is nothing wrong with the product itself, a buyer who suffers an allergic reaction may bring a successful warranty action

Other ConsiderationsExpress warranties include leasesPrivity generally irrelevant Disclaiming an express warranty unenforceableCausation, Damages, and DefensesSame criteria s implied warranties

Misrepresentations of FactThe defendant must have intended to induce the reliance of the buyer by making a statement that proved to be falsePlaintiff need not make any further showing regarding defendants state of mind and motivationPlaintiff can show inducement simply by showing the misrepresentation was a substantial factor in their purchase decision making, even if it was not the sole factorThe misrepresentation must be of a material fact concerning the quality, nature, or appropriate use of the product Privity generally irrelevant DefensesAssumption of RiskNot applicable if Plaintiffs injuries arose from relying on the representation of a product that turned out to be falseContributory Negligence and Comparative FaultGenerally same as implied warranties

NuisancePublic and Private

General ConsiderationsNuisance is an umbrella term containing aspects of:NegligenceIntentional TortsStrict Liability

Civil liability for damage caused to the use and enjoyment of ones property or to the public in general Types of NuisancePrivateAction that unreasonably interferes with use and enjoyment of nearby propertyPublicConsists of interference with rights of community at large, from obstruction of a public highway to a public gaming house

Private NuisanceNegligence aspectConcerned with reasonableness of actors activity. Was there something of what they did that was unreasonable?

Intentional tort aspectKnowledge of the substantial certainty of offensive nature of actors activityHow certain was it to that person that something offensive would result of their activities would come about.Strict liability aspectConcerned with the size and type of interferenceBased on what they are doing, what is the size and scope of interference that they could have foreseen.A single act can incur liability for these other torts in addition to nuisanceA low flying plane over someones land

Nuisance can be added to your complaint. You can bring it along with the negligence claim. All together.

RemediesMonetary DamagesInjunctive ReliefPermanent TemporaryCourt can draft to specific circumstancesBoth types of relief grounded in concepts of equity

StandingMust have standing to sue for both private and public nuisancesFor private nuisance, must simply show that defendants actions affected the use and enjoyment of your own property, not someone elsesHave to show that the smell, or smoke interfere with the use and enjoyment of your own land.For public nuisance, must show damage to you is different in kind or character than that suffered from the public in generalPart of rationale is to prevent duplicative lawsuitsStandard still hard to pinpointYou had damage above and beyond. Standard is very hard to pin point. If they release smoke in the air, everyone in the city may be affected by it, and what you are showing is that this may be affecting me. Fussy standard, but this is the idea.

Are they the proper person to bring that claim given that it is private or public? Make sure person suing is the proper person against the party. You

DEFAMATION

Libel and SlanderLibel is a defamatory statement recorded in writing or some other permanent formRadio and television broadcasts, regardless of whether they were scripted. Libel has permanent form.

Slander is spoken defamation. It is less permanent and in less physical form

Who May Be Defamed?

Plaintiff can be any living personNo defamation cause of action on behalf of deceasedIf you go to funeral and talk about someone who died, the estate cannot sue you for defamation.

Plaintiff can be a corporation or business entity, but remarks must go toward its financial condition, honesty, integrity, etc. The defamatory has to got to the heart of what the business is doing, its integrity.

Group DefamationAll Members of Small GroupWhere the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group (20)Some Members of Small GroupWhere the defamatory language refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiffAll Members of Large GroupIf the defamatory statement refers to all members of a large group, no member of that group may establish this element of the cause of action (over 100 people)

Who Can Be Liable For Defamation?

Primary PublisherAuthor (the speaker, or author of the slander) Speaker Newspaper TV station

RepublisherOne who repeats a defamatory statement will be held liable the same as a primary publisherTrue even if the repeater states the source or makes it clear that she does not believe the defamationThe original defamer's liability may be increased to encompass any new harm caused by the repetition if the republication was either intended by or reasonably foreseeable to the original defamer

Secondary PublishersNewspaper vendorsOnly liable if knew or should have known selling specific defamatory content (material)

Prima Facie Case Private Plaintiffs (element for private plaintiff, and public figures and officials)

Defamatory language on the part of the defendant

The defamatory language must be "of or concerning" plaintiffClearly identify the plaintiff to a reasonable reader, listener, or viewerPublication of the defamatory language by the defendant to a third personDamage to the reputation of the plaintiff

What Type of Language is Defamatory?

Language that tends to adversely affect one's reputation 9not language motivated by malice or ill will) simply language that when you read it could affect ones reputation or so forth with the community.Attacks an individual's honesty, integrity, virtue, work ethic, sanity, etc. Words, pictures, satire, cartoons, etc.

Inducement and Innuendo

Some language standing alone is defamatory "on its face when someone says something it can attack the reputation.However, with some language defamatory meaning only becomes apparent by adding extrinsic factsplaintiff pleads and proves such additional facts as inducement and establishes the defamatory meaning by innuendoAngelina Jolie is romantically involved with Tom Cruise. (if she wanted to prove that this is yes or not, she would have to do the one bellow) Ms. Jolie would have to prove additional facts that she is engaged to Brad PittFact and Opinion

A statement of fact may always be defamatory if it meets the above criteria A statement of opinion is actionable only if it appears to be based on specific facts, and an expresses a defamatory allegation based on those factsBased on what he did last year, I don't think Jason can be trusted with a key to the cash register" Implies personal knowledge of dishonest conduct and thus may be actionableJasons a slime ball (just an opinion, not asserting underlying facts. The broader and more vague, the more it will be held to be opinion statement. Not actionable for defamation.Generally not actionable

Generally, the broader or more vague the language, the less likely that it will be reasonably interpreted as a statement of fact or an opinion based on specific facts

Of or Concerning PlaintiffPlaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff

Even if Plaintiff is not named, can meet this requirement through colloquiumPlaintiff can plead additional facts that show reasonable reader would know it was him or her

PublicationCommunication to a third person who understood itJohnny saw a defamatory statement about Steve printed in Spanish. The publication requirement is not met unless Johnny understood the foreign wordsIf I am talking to a co-worker about another co-worker, it is publication. They have to understand it. Liability will incur if publication made intentionally OR negligentlyFor publication requirement court only looks to intent to publish, not the intent to defame. (not malice behind it, or cause harm, just was there the intent to public the statement)

Repetition of Publication

Each repetition of a defamatory statement is a separate publication for which the plaintiff may recover damagesHowever, multiple copies of the same newspaper, magazine, or book fall under the "single publication" rule where all copies of a newspaper, magazine, or book edition are treated as only one publication (cannot recover for each individual time)Damages are calculated on the total effect of the story on all of the readers (for the readership, for however many people read that statement)

DamagesLibelIn most jurisdictions, general damages (compensation for loss of reputation, humiliation, etc.) are presumed and need not be proven. Constitutional free speech considerations may restrict such an award when the defamation involves matters of "public concern" Slander:General damages are not presumed Therefore, in most cases special damages (measurable loss such as loss of job, customers, etc.) must be plead and proven(exception) UNLESS slander falls into one of four categories of slander per se, for which general damages are presumed

Four Categories of Slander Per Se (4 type of spoken defamatory statements, you wont have to show economic damages because those damages are presumed form the publication)Statement that directly denigrates plaintiffs abilities in her business or professionStatement that plaintiff is presently suffering from a venereal disease or leprosyStatement that plaintiff was or is guilty of a crime of moral turpitudeStatement related to un-chastity of a woman

Prima Facie Case:Public Figures, Public Officials & Matters of Public ConcernPrevious elements for private individuals (los de arriba) so 6 elements. If a public figure or public official=must prove 7Additional two elements:Falsity of the defamatory languageFault on defendant's partPublic figures and public officials must additionally prove by "clear and convincing" evidence that the statement was made with "malice"

Two Ways to Be a Public Figure Achieved pervasive fame or notoriety Celebrities Sports figuresMan stream appeal or recognition.Voluntarily assumes a central role in a particular public controversy Community activistBut only a "public figure" for that issuePossible for a person to become a public figure through no purposeful action, but exceedingly rare

What is Malice ?Knowledge that the statement was falseORReckless disregard as to its truth or falsity

As to the above two requirementsNOT determined by a reasonable person standard NOT showing defendant acted out of spiteBUT a subjective standard inquiring whether defendant in fact entertained serious doubts as to the truthfulness of his publicationA journalist deliberately altering a quote to materially change its meaning

Complete Defenses to DefamationConsentIf I consented you to say X, then that is it.Truth Only applicable in private cases since plaintiff is not required to prove falsity as an element of claimAbsolute PrivilegeArises in five different circumstancesThere are also circumstances of qualified privilege for certain circumstances

Absolute PrivilegeAll parties to official court and judicial proceedings have absolute privilege for statements directly related to any aspect of those proceedingsAll remarks made by either federal or state legislators during legislative proceedings Statement of governmental executive official, related to an executive matter, while exercising the functions of her officeRadio or TV station compelled to allow a speaker use airwaves, or a newspaper compelled to print public notices, is not liable for statements made during those broadcastsEqual time provisions

Communications between spousesIf you fight with your partner, you cannot sue for defamation.Mitigating FactorsNot defenses to a defamation action, but may be considered by the trier of fact to reduce damagesNo actual malice in statementsRetractionFailure to retract after a request to do so allowed as evidence to increase damagesAnger of the speaker if provoked by the plaintiff

1/22/15 10:12 AM

Thing v. LaChusa

Under zone of danger: Under the Dillon: when she comes down, she didn't see the aftermath. Contemporaneous observance is enough, and she would be able to recover. This court does not go with the Dillon case.They decided the case in terms of the 3 prong testYour ability to recover depends on the jurisdiction and on what test to apply.

1/22/15 10:12 AM