Torts 2

Purpose for Strict Liability in Tort

“The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves”

Greenman v. Yuba Power Products

§ 402(A)

• (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

  • (a) the seller is engaged in the business of selling such a product, AND

  • (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

• (2) The rule stated in Subsection (1) applies although (STRICT LIABILITY)

  • (a) the seller has exercised all possible care in the preparation and sale of his product, AND

  • (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller

What is a Defective Product

A product is defective when, at the time of sale or distribution, it contains:

• a manufacturing defect

• is defective in design,

• or is defective because of inadequate instructions or warnings.

What is a Manufacturing Defect

Elements

• (1) Product deviated from intended design or specifications

• (2) Defect existed at time the product left the D’s control

• (3) Defect made the product unreasonably dangerous

• (4) Defect proximately caused the P’s injury

• (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

  • (Departs from its intended design)

  • (Despite care being exercised)

  • (aka strict liability)

What is a Defective Design

Elements

1. Product, as designed, is unreasonably dangerous

2. A feasible alternative design existed

3. Defect existed when the product left the D’s control

• (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe

  • (foreseeable risks of harm)

  • (could have been avoided by reasonable alt design)

  • (omission of the alternative design renders unreasonably safe)

  • (Remember: reasonable alt design must still functional in all other regards as the OG)

Risk-Utility Test

RE: Design Defect

• “The risk-utility balancing test is merely a detailed version of Hand’s negligence calculus”

  • Gravity of danger

  • Likelihood of injury

  • Availability of Safer design

  • Manufacturer’s ability to eliminate danger without impairing function

  • User’s ability to avoid danger though reasonable care

TWO-PART TEST

1. A Safer Alternative Design exists AND

2. The defect renders the product unreasonably dangerous

Factors for “Safer Alternative”

RE: “Design Defect”; “Risk Utility Test”

1. Alternative design would have been safer and prevented or significantly reduced risk of the injury

2. Alternative design would not have been less safe in other circumstances or increased risks to other uses

3. Alternative design would not have substantially impaired the product’s utility

4. Alternative design was economically and technologically feasible at the time of design/manufacture

Factors for “Unreasonable Danger”

RE: “Design Defect”; “Risk-Utility”

1. Do gravity & likelihood of injuries outweigh product’s utility?

2. Is there an affordable substitute with substantially the same utility?

3. Is there a safer alternative design? (note redundancy)

4. Is the danger of misuse obvious and readily avoidable?

5. What are consumers’ ordinary expectations (of safety, etc.) for the product?

Consumer Expectation Test

AKA: §402(A)

RE: Design Defect

“A manufacturer of a product made under a plan or design which makes it dangerous is subject to liability to others whom he should expect to use the product or to be endangered BY ITS PROBABLE USE from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design”

SEE: Prentis v. Yale Mfg. Co.

Standard for “State of the Art”

“It is manifest that, if knowledge or knowability is a component, state-of-the-art evidence is relevant and, subject to the normal rules of evidence, admissible.” (SEE: Anderson v. Owens-Corning)

What is Inadequate Warning/Instruction

ELEMENTS

1. The product posed a foreseeable risk of harm when used as intended (or reasonably foreseeable misuse)

2. D failed to provide an adequate warning or instruction about the risk

3. Inadequate warning made the product unreasonably dangerous

4. Failure to warn was the proximate cause of the P’s injury

c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the…

What is Intermediary Doctrine

• …states that a manufacturer of a prescription drug or medical device fulfills its duty to warn by warning the prescribing physician, not the patient directly

• Physician has responsibility to communicate necessary warnings to patient, effectively as an intermediary between the manufacturer and patient

Contributory Negligence/AOR/Comparative Fault

(Contributory Negligence) + (Assumption of the Risk) = (Comparative Fault)

Contributory Negligence

RE: Product Defect Defenses

“The foregoing goals, we think will not be frustrated by the adoption of comparative principles.” SEE Daly v. General Motors Co.

“The principle of protecting the defenseless is likewise preserved, for plaintiff’s recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury”

Misuse of the Product

RE: Product Defenses

“Evidence concerning a misuse or altercation of the product could be used to argue that

• There was no defect in the product (failure of prima facie case)

• That any defect in the product did not cause the P’s injury (no causation)

• That P’s unreasonable conduct in contributing to the cause of the accident should reduce recovery

Maynard v. Snapchat

RE: “Product Defenses”; “Misuse of Product”

Snapchat did not owe a duty to the P because, “a manufacturer’s duty to design reasonably safe products does not extend to people injured by a third party’s intentional and tortious misuse of the product”

GA and Misuse of Product

• No “blanket exception” just because intentional or tortious misuse

• Rather, question is one of reasonable foreseeability; Duty extends to reasonably foreseeable uses

• KEEP IN MIND

  • Proximate cause severed by unforeseeable intervening acts

Preemption

RE: “Product Defenses”

• “Whether a state product liability claim is preempted by a federal law”

Express Preemption

RE: “Product Defenses”; “Preemption”

• “…where Congress has made its intent to preempt state law clear, the courts have no choice…”

• “…the manufacturer need comply only with the federal statute and the regulations issued under it.”

Implied Preemption

RE: “Product Defenses”; “Preemption”

• “However, federal law can preempt state law if it pervasively occupies a particular field of law”

• “Where Congress not clear, courts must determine whether preemption is warranted”

• Case by case analysis

Sellers of Used Goods

RE: “Ds other than Manufacts”

• General rule → Sellers of used goods are not subject to strict liability under products liability

Erie Ins. Co. v. Amazon

RE: “Ds other than Manufacts”

• Is Amazon a “seller”

  • “We find no indication that the term ‘seller’…should be understood in any manner other than its ordinary meaning”

  • “While Amazon does in fact sell products that it owns on its website..in this case it facilitated the sale…”

  • “Although Amazon’s services ere extensive in facilitating the sale, they are no more meaningful to the anaylsys than are the services provided by UPS Ground…”

Products Liability in Georgia

→ O.C.G.A. § 51-1-11(b)(1)

• Manufacturing defects

• Design defects

• Warning/Instructional Defects

• NOTE ** → Can also sue for negligent design, negligent failure to warn

Nature of a Defamatory Communication

“Defamation is rather a communication that tends to damage the P’s reputation…

“…that is, to diminish the respect, good will, confidence or esteem in which he is held, or to excite adverse or unpleasant feelings about him”

Judge/Jury Roles (RE: Defamation)

Judge → “Is statement reasonably capable of carrying defamatory meaning”

Jury → If reasonably capable, which did the actual publication carry?

Pleading Defamation (Formula)

1. Defamatory words

2. The publication

3. Extrinsic Facts

4. The Colloquium (words were spoken of and concerning the P)

5. The innuendo (an allegation of the particular defamatory meaning conveyed)

6. Special Damages when necessary

“Substantially True”

RE: “Defamation”

“While, in order to support a defense of truth, it is necessary merely to prove that it was substantially true…”

“…had shown a variance merely in the details…it would nevertheless have been admissible as giving support to the plea of truth…

Defamation of a Group

R2d § 564A

(a) the group or class is so small that the matter can be reasonably understood to refer to the member OR

(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member

Comment B → (…generally successful…number 25 or less…)

Defamation and Damages

Slander → must prove “special damages” aka pecuniary loss (unless slander per se)

Libel → No requirement for special damages (unless libel per quod)

Slander Per Se Categories

1. Accusations of criminal conduct

2. Claims of loathsome disease

3. Attack on trade/biz

4. Allegations of serious sexual misconduct

Don’t have to Prove Special Dmgs

May get Pain/Suffering if prove Special

Libel per se vs. Libel per quod

Libel per se → “actionable on its face”; Obvious from reading the libel that it is defamatory; No additional evidence needed

Libel per quod → needs additional facts; need to prove special damages

Secondary Publishers

RE: “Defamation”; “Libel”

• → A Vendor/Distributor of newspapers, magazines, books, etc.

  • A secondary publisher is not liable if it did not know about, and had no reason to suspect, libelous matter in the publication.

• A newspaper or book publishing company DOES NOT qualify as a secondary publisher and IS subject to strict liability even though it innocently took the defamatory material from someone else without reason to be put on guard

Exception for Wire Services

RE: “Defamation”; “Secondary Publisher”

• Republication of items received from wire services will not be subject to liability if:

  • (1) the service was reputable

  • (2) D did not know of the falsity

  • (3) the story itself does not reveal its falsity AND

  • (4) no substantial change was made to the story

Public Figure + Public Concern

Standard for Defamation

→ P who is a public figure must prove D’s defamatory statement was made with actual malice

BOP? → clear/convincing evidence; independently assess the relevant evidence

Actual Malice & “Reckless Disregard”

→ “knowledge of its falsity or reckless disregard for its truth/falsity”

• Ill will not enough

→ “Reckless disregard is a subjective mental state; circumstantial evi; Willful blindness acceptable

• “Whether the D IN FACT entertained serious doubts as to the truth of his publication…

• NOT whether a reasonably prudent person would have investigated…

Private Person + Public Concern

Standard for Defamation

→ P who is a private person must prove D’s defamatory statement was at least negligently made

• Actual (presumed) or Punitive Dmgs? (MUST SHOW ACTUAL MALICE)

Private Person + Private Concern

• Showing of Negligence? (probably..)

• No actual malice requirement for presumed and punitive damages

RE: Falsity

RE: “Defamation”

In matters of Private Person + Public Concern…P must prove falsity

“To ensure that true speech on matters of public concern is not deterred, common-law presumption that defamatory speech is false cannot stand”

“Whenever cases are uncertain as to whether statements are true/false, Constitution requires that scales be tipped in favor of protecting true speech”

RE: Opinion

RE: “Defamation”

→ Opinions are protected by FA; Only Facts are actionable

• “The principle of ‘fair comment’ afforded legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.”

Privileges, generally

→ “Even if elements are met, there are independent societal interests that should prevent liability in the situation in question”

Absolute Privileges (Types)

1. Judicial proceedings, generally

2. Quasi-judicial proceedings

3. Legislative proceedings

4. Federal officials (High/Low Rank)

5. State Officers (Some allow both; some only High)

Conditional Privileges, Generally

→ “must be exercised in a reasonable manner and for a proper purpose; D cannot exceed scope

→ when it is “fairly made by a person in the discharge of some duty…”

Conditional Privileges (Types)

1. Job references

2. Protection of biz against unfair competition

3. Protection of Personal Safety (or another)

4. Collections (Debt, stolen, etc.)

5. Against defamation by another

Four Privacy Torts

1. Appropriation

   • Invasion of privacy → appropriation of image/likeness

2. Intrusion

   • Invasion of privacy → intrusion upon seclusion

3. Public disclosure of private facts

4. False Light

Appropriation (Restatement Section)

RE: “Appropriation”

R2 652C→ “One who appropriates to his own use or benefit the name/likeness of another is subject to liability to the other for invasion of his privacy.”

Elements of Appropriation

1. The D used the P’s name/likeness

2. Use of the the P’s name/likeness was for the D’s own purposes or benefit, commercially or otherwise

3. The P suffered damages

4. D caused the damages

SEE: Joe Dickerson, LLC v. Dittmar

Newsworthiness Privilege

RE: “Privacy Torts”; “Misappropriation”

• FA privilege for use of name/likeness -→ “made in the context of, or reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern”

DON’T FORGET!** → commercial vs. noncommercial

Commercial vs. Non Commercial Use

RE: “Misappropriation; “Newsworthiness Privilege”

“…whether the character of the publication is primarily noncommercial, in which the privilege will apply, or primarily commercial, in which case the privilege will not apply”

“Is the publication primarily commercial or non commercial?”

• Question of law

• “Commercial speech is speech that proposes a commercial transaction”

• “It is the context of the speech, not the motivation of the speaker, which determines whether particular speech is commercial”

• “…to be actionable, the use of a P’s identity must be more directly commercial than simply being printed in a a periodical that operates for profit.”

Restatement Section for Intrusion on Privacy

RE: “Intrusion”

R2 652B → One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person

1. Intentionally intrudes (Physically or otherwise)

2. Upon the solitude or seclusion

3. Of another or his private affairs or concerns

4. Highly offensive to a reasonable person

REMEMBER**

• → “Privacy for purposes of the intrusion tort must be be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion” (NO COMPLETE EXPECTATION OF PRIVACY)

• → “The tort is proven only if the P had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source”

• “…a person who lacks a reasonable expectation of complete privacy in a conversation, because it could be seen and overheard by coworkers (but not the general public), may nevertheless have a claim for invasion of privacy by intrusion based on covert videotaping of that conversation”

Restatement Section for Public Disclosure of Private Facts

Elements

1. One who gives publicity

2. to private facts

3. Highly offensive to reasonable person

4. Absence of legitimate public concern

R2 652D →

• One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

  • (a) would be highly offensive to a reasonable person AND

  • (b) is not of legitimate concern to the public

REMEMBER**

• → “SCOTUS has consistently held that even false statements which cause actual harm must be given limited breathing space”

• “Breathing Room” “Vigor and Public Debate”

• “Surely, it would be reasonable to argue that the publication of TRUE statements, such as those made by the Ds, are entitled to no less constitutional protection than that guaranteed false statements

• Via Hall v. Post

Restatement Section on False Light

R2 652E

• → One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

  • (a) the false light would be highly offensive to a reasonable person

  • (b) the actor had knowledge or acted in reckless disregard to the falsity of the matter (actual malice)

“False Light” vs. “IIED”

VIA Hustler v. Falwell

• → “Respondent argues….because here the State seeks to prevent not reputational damage, but the sever emotional distress…”

  • Respondent thinks because the utterance was intended to iied it is of no constitutional import whether the statement was a fact or opinion or true or false

• → “But in a world of debate about public affairs, many things done with motives that are less admirable are protected by the FA”

  • While such a bad motive may be deemed controlling for tort liability in other areas, we think the FA prohibits such a result in the area of public debate about public figures

Public vs. Private Concern

RE: “False Light”

→ All of the circumstances (totality test)

• Does the speech relate “to any matter of political, social, or other concern to the community”

• Examine: (1) Content, (2) Form, (3) Context

Malicious Prosecution

Elements

• (1) There was a prosecution (reports are insufficient)

• (2) The Prosecution was instigated by the D

• (3) The D acted maliciously

• (4) the D acted without probable cause AND

• (5) the prosecution terminated in favor of P

Injurious Falsehood

AKA → “commercial disparagement”

Elements →

• (1) published a provably false communication

• (2) of and concerning the P or the P’s pecuniary interests

• (3) with knowledge of the statement’s falsity or recklessness as to its falsity (actual malice)

• (4) when pecuniary harm to the P was either intended OR foreseeable AND

• (5) resulting pecuniary harm to the P

Remember** →

“Major Distinction with Defamation”

• “interest protected”; ie. profit

“Proof of Specific Damages”

• “When the damages claimed consist only of loss of prospective contracts…

  • P must identify the particular customers

  • And specify the transactions of which he claims to have been deprived

Injurious Falsehoods and Privileges

VIA: Horning v. Hardy

• “It appears that any absolute or qualified privilege that applies to defamation under the common law applies also to injurious falsehood”

• “The D has a qualified privilege to protect his own interests by the assertion of a bona fide claim to any kind of property”

• “Like other qualified privileges, the D will be liable for excessive publication to persons whom it is not reasonably necessary to reach or if he includes statements that he knows to be untrue.”

Tortious Interference with Contract

Elements

• (1) a valid contract existed between the P and a 3rd party

• (2) the D engaged in wrongful conduct as defined in subsection 2;

• (3) the D intended to cause a breach of the P’s contract or disruption of its performance AND

• (4) the D’s wrongful conduct caused a breach of the k or disruption of performance (SEE R3 § 20(2))

VIA: Della Penna v. Toyota Motor

“…Lumley v. Gye dealt with conduct intended to induce the breach of an existing contract…”

“That such an interference with prospective economic relations might itself be tortious was confirmed by the Queen’s Bench…”

Main Element? → “malicious intent”

• …of a D in enticing an employee to breach her contract with the P, and in damaging the business of one who refused to cooperate with the union in achieving its bargaining aims

• …the cases have turned almost entirely upon the D’s motive or purpose and the means by which he has sought to accomplish it”

• “…a claim of interference with economic relations is made out when interference resulting in injury

Why a Tort? →

• “…this early accent on the D’s ‘intentionality’ that was responsible for allying the interference torts with their remote relatives…an interference with contract case that ‘intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact damage…is actionable if done without just cause or excuse.”

“Wrongful” (RE: Interference with K)

RE: “Interference with K”;

• (1) the D acted for the purpose of appropriating the benefits of the P’s contract; OR

• (2) the D’s conduct constituted an independent and intentional legal wrong; OR

• (3) the D engaged in the conduct for the sole purpose of injuring the P

SEE: R3 § 20(2)

“Wrongful” (RE: Interference w/ Economic Expectation)

RE: Interference w/ Economic Expectation

• (1) the P had a reasonable expectation of an economic benefit from a relationship with a third party

• (2) the D committed an independent and intentional legal wrong

• (3) the D intended to interfere with the P’s expectation, AND

• (4) the defendant’s wrongful conduct cause the expectation

SEE: R3 §17

Privileges and Justifications RE: “Conduct”

RE: “Wrongful Conduct”; “Interference w/ K”

Conduct….is privileged if it consists of

• (1) lawful disclosure of truthful facts to another OR

• (2) lawful and good-faith efforts to protect a legal interest OR

• (3) lawful and good-faith efforts to protect an economic interest in the contractual relationship at issue.

Elements of Intentional Misrepresentation (Fraud)

Elements →

• (1) an intentional misrepresentation

• (2) of fact

• (3) that proximately causes harm (our focus → economic)

• (4) is material,

• (5) intended to induce and

• (6) does induce reliance by P

• (7) which is reasonable or “justifiable”

Concealment v. Non-Disclosure

Default Rule →

• “Absent an affirmative duty to disclose material information, nondisclosure will not give rise to a claim of fraudulent misrepresentation”

Non-Disclosure →

• “There is nothing to show any fiduciary relation between the parties, or that the P stood in a position of confidence toward or dependence upon the D…it is concealment in the simple sense of mere failure to reveal, with nothing to show any peculiar duty to speak.” SEE Swinton v. Whitinsville Savings Bank

Concealment →

• “One who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation or concealment…of course the fraudulent concealment to be actionable has to be material to the transaction” SEE: Griffith v. Byers Constr. Co.

• R2 § 551: “One who fails to disclose to another a thing that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability as though he had represented the nonexistence of the matter that he has failed to disclose, if but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question

• REMEMBER**

  • Must be MATERIAL

  • R2 538 →

    • “One to which a reasonable man would attach importance in determining his choice of action in the transaction in question”

Privity & Misrepresentation

RE: Intentional Misrepresentation

“Is privity necessary?”

R2 § 531 →

• “A person who makes a misrep is liable to persons the maker intends or ‘has reason to expect’ will act in reliance upon the misrep”

Derry v. Peek

RE: Misrepresentation vs. “Intentional Misrepresentation”/”Fraud”/”Deceit”

→ “Where [misrepresentation] it is only necessary to prove that there was misrepresentation…

• “…then however honestly it may have been made, however free from blame…the k, having been obtained by misrepresentation, cannot stand”

→ “In an action of deceit, on the contrary, it is not enough to establish misrepresentation alone…”

• Fraud is proved when it is shown that a misrep has been made

  • (1) knowingly OR

  • (2) without belief in its truth OR

  • (3) recklessly

Tort of Deceit

→ “…it is not enough to establish misrepresentation alone, fraud is required”

• (1) false misrepresentation has been made

• (2) knowingly OR

• (3) without belief in its truth OR

• (4) recklessly

Intl Prods v. Erie RR

RE: “Negligent Misrepresentation”

→ Court departs from Derry v. Peek

• “In some cases a negligent statement may be the basis for a recovery of damages…”

• “Liability in such cases arises only where there is a duty, if one speaks at all, to give the correct information”

→ When is there a Duty to give correct info?

• “Many considerations”

• “There must be knowledge, or its equivalent, that the info is desired for a serious purpose; that he to whom it is given intends to rely and act upon it…etc.”

• (Basically, “material standard”)

Restatement Section on Negligent Misrepresentation

RE: “Negligent Misrepresentation”

R3 § 311 →

• “One who negligently gives false info to another is subject to liability for physical harm caused by action by the other in reasonable reliance upon such information, where such harm results

  • to the other OR

  • third persons the actor “should expect to be put in peril” by the action taken

“Negligent Misrepresentation”; “3rd Parties”

Ultramares Corp. v. Touche

→ Seminal case

• “Privity is required for duty for negligent misrepresentation claim”

• “Generally speaking, no duty to 3rd parties, even if they relied on the info”

Credit Alliance Corp v. Arthur Anderson

→ Negligent misrep & Accountants

• “No duty of accountants to third parties, unless

  • (1) Accountants aware that the financial reports were to be used for a particular purpose or purposes

  • (2) In the furtherance of which a known party or parties was/were intended to rely AND

  • (3) Must have been some conduct by accountants linking them to that party/parties, evincing accountants’ understanding of that reliance

Citizens State Bank v. Timm, Schmidt & Co.

→ Court adopts much broader duty rule

• “Liability will be imposed on accountants for the foreseeable injuries resulting from their negligent acts unless recovery is denied on the grounds of public policy

Reliance & Misrepresentation

→ There is no justifiable reliance on “obviously” false facts

• If a statement’s falsity can be discovered by ‘ordinary observation’, then there is no justifiable reliance on the statement

• Consider: Intelligence/Experience of misled individual, along with relationship between the parties

→ “majority of cases hold that P has no duty to make inquiry or investigation as to the truth of an apparently reliable statement

Opinion & Misrepresentation

Default Rule →

• Pure statements of opinion typically aren’t actionable

  • BUT when an opinion is based on past or present facts about which the D has special knowledge, an opinion can support an action for fraud

“Cause-Based” vs. “Fault-Based”

RE: “Apportionment”

“Cause-Based”

→ Divisible injuries

• Dividing responsibility for damages based on how much each D’s specific actions contributed to the P’s harm

“Fault-Based”

→ Indivisible injuries

• Not strictly how much they caused; how wrong actions were

• How reckless, negligent, intentional, blameworthy