ACC 473: Torts and Product Liability, Chs. 6 & 7

Torts

civil wrong – provides a remedy for the victim of the tort

ALL requirements must happen to constitute an eligible tort

Compensatory Damages

Compensate the victim for their actual losses

Does not factor in economic worth

Special Damages

A type of compensatory damage for quantifiable losses

Examples:

(1) Medical expenses (2) Lost income/benefits (3) Property damage

General Damages

A type of compensatory damage for the nonmonetary aspects of the harm suffered; not available to companies as they are not considered persons.

Examples:

(1) Pain and suffering (2) Lose of consortium (3) Disfigurement (4) Harm to reputation (5) Mental impairment (6) Physical capacity

Punitive Damages

Designed to punish the tortfeasor and deter others from acting in a similar manner

a) Based upon extreme and outrageous conduct

b) Amount is based upon the economic worth of the tortfeasor (but not so sigh that it is considered cruel and unusual punishment)

Transferred Intent

If tortfeasor intends to harm A, but harms B, the intent to harm will be “transferred” to B; allowing B to recover for any damage.

Assault

Verbal admissions and imminent acts qualify.

Requirements:

1, Intentional and unexcused.

2. Threat of immediate harmful or offensive contact (word or acts).

3. That creates a reasonably believable threat.

Battery

Completion of an assault. Contact can be made by the defendant or by some force set in motion by the defendant.

Requirements:

1. An unexcused and harmful or offensive physical contact.

2. Intentionally performed.

3. Whether the contact is offensive is determined by a reasonable person standard

False Imprisonment

Requirements:

1. Intentional confinement of another person or restraint of another person’s activities without justification.

2. Use of physical barriers, physical restraint, or threats of physical force.

Shopkeeper Privilege Defense

Merchant may detain someone suspected of shoplifting as long as it is conducted in:

a) Reasonable manner

b) Reasonable length of time

Intentional Infliction of Emotional Distress

Speech about public figures are protected under the First Amendment. (Hustler Magazine, Inc. V. Falwell).

Requirements:

1. Extreme and outrageous conduct

2. Resulting in severe emotional distress

Defamation

Requirements:

1. False statement of fact.

2. About the plaintiff and tended to harm the plaintiff’s reputation.

3. Published to at least one person other than the plaintiff.

4. If the plaintiff is a public figure, must also prove actual malice (knowingly false or reckless disregard for the truth)

Defenses to Defamation

a) Truth

b) Absolute Privileged Communication

• Statements in judicial proceedings

• Statement to Legislative Bodies.

c) Qualified Privileged Communication

• Made in good faith

• Limited communication to those with legitimate interest in the communication

Invasion of Privacy

Includes:

1. Intrusion into an Individual’s Affairs or Seclusion – entering home or searching property without permission.

2. False Light – publication of information that may not be false, but creates a false impression.

3. Public Disclosure of Private Facts – information that would ordinarily be considered objectionable to disclose.

Appropriation

Use of a Person’s name, picture, likeness or other identifiable characteristics:

• For commercial purposes

• Without permission.

Fraudulent Misrepresentation

Requirements:

1. Misrepresentation of material fact

2. Intent to induce another to rely on the misrepresentation.

3. Justifiable reliance by innocent party.

4. Damages suffered as a result of reliance.

5. A causal connection between misrepresentation and the injury suffered

Negligent Misrepresentation

requires only that the person making the statement or omission did not have a reasonable basis for believing its truthfulness

Malicious prosecution

Requirements:

a) File suit with malice

b) Without legitimate legal reason

c) Loses suit

Abuse of Process

Requirements:

a) Any legal process (not just filing a lawsuit)

b) Malice not required

c) Using legal process for other than what it is intended.

Wrongful Interference with Contractual Relationship.

Requirements:

1. A valid, enforceable contract between two parties.

2. Third party (tortfeasor) must know the contract exists.

3. The Third Party must intentionally induce a party to the contract to breach the contract.

Wrong Interference with Business Relationship

Requirements:

1. Established business relationship

2. The defendant uses predatory methods to cause the relationship to end

3. Plaintiff suffers damages

Defenses to Wrongful Interference

1. The interference was justified or permissible

2. Bona fide competitive behavior.

Trespass to Land

Includes:

1. Physically enters onto, above, or below the surface of another’s land

2. Causes anything to enter onto the land

3. Remains—or permits anything to remain—on the land

Defenses for Tresspassing

a) Trespass warranted –Necessity- coming to the aid of another

b) Hold a Licensee to enter the property.

Trespass to Personal Property

Intentionally interfering with a person’s possessory interest in property.

Conversion – Wrongful possession or use of property of another without permission

a) Can be based upon failing to return goods; for which permission was granted for a limited time

Unintentional Torts

Plaintiff must prove:

• The defendant owed a Duty of care to the plaintiff.

• The defendant a Breach of that duty.

• The defendant’s breach is the Causation of the plaintiff’s injury.

• The plaintiff suffered a legally recognized Damages.

Duty and Breach

1. Reasonable Person Standard – how would a reasonable prudent person act?

2. Landowner’s have a duty to maintain their property in a safe manner.

• Duty to warn of dangerous conditions. ie: Wet floor signs

3. Professionals - meet the minimum standard of knowledge and care of the profession. Not reasonable person, but reasonable professional in the field.

Causation

Two Factors:

1. Actual Cause (Cause in Fact) “But for” the breach would the injury have occurred.

2. Proximate Cause (Legal Cause) – Is the injury foreseeable or to remotely connected to create liability.

Foreseeability test – Palsgraf v. Long Island Railroad.

• Woman was indirectly harmed from railroad staff pushing a man with fireworks in his luggage

Statutory Protections

1. Good Samaritan Statutes – vary from state to state. Provide shield from liability for those that help in an emergency situation.

2. Dram Shop Acts – vary from state to state. Extend liability to bartenders/owners for injuries caused by customers that became intoxicated in the establishment.

Defenses to Negligence

• Assumption of risk

• Superseding cause

• Contributory and

• Comparative negligence

Assumption of risk

when the plaintiff was aware of a danger and voluntarily assumed the risk

Contributory Negligence

If the Plaintiff’s own negligence contributes to the injury, then the Plaintiff is barred from any recovery.

Comparative negligence

If the Plaintiff’s own negligence contribute to the injury, then amount recovered by Plaintiff is reduced by their percentage of negligence

Pure Comparative – Plaintiff can recover even if their percentage of fault is greater than the Defendant.

Modified Comparative – Plaintiff can only recover if their percentage of fault is not greater than the Defendant.

• 50 Percent Rule: Plaintiff recovers only if liability is less than 50%

• 51 Percent Rule: Plaintiff recovers nothing if liability is greater than 50%.

Strict Liability

Liability regardless of fault:

• abnormally dangerous activities,

• dangerous animals

• defective products.

Product Negligence

Privity of Contract Not Required

Due care must be exercised in:

a) Design,

b) Selecting Materials

c) Production Process

d) Assembling and Testing

e) Adequate Warnings

f) Inspection, and Testing..

Must prove “Cause in Fact” and Proximate Cause

Product Misrepresentation

Requirements:

1. Fraud committed against consumer or user of product.

2. Made knowingly or with reckless disregard for safety.

3. Plaintiff does not have to show product was defective

Strict Product Liability

1. The product must be in a defective condition when the defendant sells it.

2. The defendant must normally be engaged in the business of selling that product.

3. The product must be unreasonably dangerous to the user or consumer because of its defective condition

4. The plaintiff must incur physical harm to self or property by use or consumption of the product.

5. The defective condition must be the proximate cause of the injury or damage.

6. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

Product Defects

1. Manufacturing Defects – departure from a product unit’s design specifications that results in products that are physically flawed, damaged, or incorrectly assembled.

2. Quality Control: Manufacturer failed to exercise due care in the manufacture, assembly, or testing of the product.

3. Design Defects - Product is unreasonably dangerous as designed even if it is manufactured correctly.

Inadequate Product Warnings

Product is defective based on inadequate end-user warnings or instructions

Requirements:

1. Foreseeable Misuses.

2. Content of Warning: “reasonableness” test

3. Obvious Risks: No duty to warn about obvious or commonly known risks

Defenses for Product Liability

1. Preemption Doctrine

2. Product Misuse:

• Plaintiff was misusing the product, and

• Plaintiff’s misuse was not reasonably foreseeable to the defendant.

3. Assumption of the Risk.

• Plaintiff knew and appreciated the risk created by the alleged product defect, and

• Plaintiff voluntarily assumed the risk, even though it was unreasonable to do so.

4. Comparative Negligence (Fault)

5. Commonly Known Dangers: A danger so commonly known that the defendant had no duty to warn plaintiff.

6. Knowledgeable User: A danger so commonly known by particular users of the product that the defendant had no duty to warn plaintiff.

7. Statutes of Limitation: Time limit to file claim.

8. Statutes of Repose: Outer limit to file a claim, cuts of time set by statute of limitations.