Torts II Skeleton Outline

Damages
I. Three Basic Damages
a. Nominal – Rare, small, to vindicate rights
b. Compensatory – Put P in position he was in before tort was committed
c. Punitive – Punish and deter D
II. Personal Injuries/Damage Calculations
a. Maximum Possible Verdict
b. Recovery for future damages – Calculated by expert witnesses
c. Present Value Rule
d. Per Diem Argument
e. Reimbursement by Third Persons (Collateral Source Rule)
f. Duty to Mitigate
III. Punitive Damages
a. Can Be Awarded In:
i. Intentional Tort Cases
ii. Negligence Cases – Negligence is not malice, must be something more
iii. Product Liability Cases
b. Can Be Challenged On Two Ground:
i. Excessive Award in Damages Phase
1. Grossly excessive standard
2. Ratio of actual to punitive – Single digits
3. Degree of reprehensibility of D
4. Punitive awards in comparable cases
ii. Procedural (Bifurication)
Compensation Systems as Substitutes for Tort Law
I. Workers Compensation
a. Strict liability and completely statutory in nature, negligence and fault are immaterial on either side
b. Employee is automatically entitled to benefits when injured but gives up right to sue
i. Exceptions to employee receiving compensation
ii. Exception to employee giving up right to sue employer – Can still sue third party

Wrongful Death and Survival

II. Wrongful Death
a. Elements
i. Loss of support by decedent
ii. Loss of service by decedent
iii. Loss of society by decedent
iv. Damages for funeral expenses
III. Survival
a. Recovery for pain and suffering and lost earnings and expenses by the decedent prior to his death
Defenses
I. Statute of Limitations and Repose
a. Statute of Limitations
i. Time of Damage Rule
ii. Discovery Rule
iii. Tolling
b. Statute of Repose
II. Immunities
a. Families
i. Husband and Wife – Majority has abolished immunity
1. Rationale
ii. Parent and Child – Majority has abolished or partially abolished
 1. Rationale for keeping and rationale for getting rid of
b. Charities
i. Common Law rationale for immunity
ii. Modern rationale for abolishing
iii. Limiting Charitable Immunity
1. Beneficiaries
2. Liability Insurance
c. State and Local Governments
i. State Governments
ii. Local Governments
d. Employer Liability – Workers Compensation Above
e. The United States
i. 1946 Federal Torts Claim Act
f. Public Officers – President, Congress, federal judges, etc.
Vicarious Liability
I. Respondeat Superior
a. Rationale
b. Elements
i. Negligent actor must have been an employee AND
ii. Was working within the scope of employment at the time injury was inflicted
c. Scope of Employment
i. Commuting Trips
ii. Frolic/Detour
1. Determination Factors
II. Independent Contractors
a. Distinguish between employee and independent contractor
b. Employer Generally Not Liable. Exceptions –
i. Employer’s Own Liability
ii. Non-Delegable Duty
iii. Inherently Dangerous Activities
Strict Liability
I. Overview
a. Basis For Doctrine – Those who engage in certain kinds of activities do so at their own peril and must pay
for any damage that foreseeably results, even if the act was carried out carefully
i. Rationale
II. Animals
a. Wild Animals
b. Domestic Animals
i. One Bite Rule
III. Abnormally Dangerous Activities
a. Factors in Determining Whether Risk is Abnormally Dangerous
i. High degree of risk
ii. Risk of serious harm
iii. Risk cannot be eliminated even by due care
iv. Not a matter of common usage
v. Appropriateness – Where activity was carried out
vi. Value – Value to the community outweighs risk
IV. Limitations on Strict Liability
a. SL only for harm/damage which results from the kind of risk that made the activity dangerous in the first
place
b. D will not be strictly liable for his abnormally dangerous activities if P conducts an abnormally sensitive
activity
c. Comparative Fault/Negligence Jurisdictions
 i. Court will reduce P’s recovery even in a SL action
ii. Two Jurisdictional Views
1. Pure Comparative Negligence
2. Modified Comparative Negligence
a. Less Than
b. Not Greater Than
Joint Tortfeasers
I. Liability and Joinder of Defendants
a. Joint and several liability allows P to pursue all, some, or only one of his tortfeasers for the full amount
of the damages
i. Rationale
b. Three Types of Situations Where J and S Liability is Imposed –
i. Action in Concert
ii. Where D’s fail to perform a common duty to P – Master to servent, employer to employee, etc.
iii. Where D’s act independently and cause harm, and their harm cannot be broken up
c. Modern Rule on Joint and Several Liability
i. Comparative Fault does not eliminate J and L
1. Reasons Why
II. Satisfaction and Release
a. Satisfaction
b. Pierringer Agreement/Release
i. Pro Rata Percentage Rule
ii. Pro Tanto Dollar for Dollar Credit
III. Contribution and Indemnity
a. Contribution – If D pays more than his pro rata share, he can recover from the other D
i. Exceptions – Comparative fault jurisdictions and jurisdictions that have eliminated J and L
ii. Limits on the Doctrine
1. No Intentional Torts
2. Contribution D Must Have Liability
b. Indemnity
Products Liability
I. Strict Liability in Tort
a. Restatement 402A
i. One who sells
ii. Any product in a defective condition
1. Manufacturing defect
2. Design defect
3. Warning defect
iii. Unreasonably dangerous to the user or consumer or to his property
iv. Is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to
his property if:
1. The seller is engaged in the business of selling such a product AND
2. It does not reach the consumer with substantial change in condition
v. The rule above applies although:
1. The seller has exercised all possible care in the preparation and sale of his product AND
2. The user or consumer has not bought the product from or entered into any contractual
relation with the seller
b. Rationale for Strict Liability
i. Difficult for consumer to prove negligence
ii. SL gives manufacturers an incentive to make safe products
iii. Reputable manufacturers stand behind products
iv. By placing items on market, manufacturer is telling consumer the product is safe and
trustworthy
 c. Food Product Liability Claims
i. Foreign Natural Doctrine
ii. Consumer Expectation Test
II. Product Defects
a. Manufacturing Defect
i. Definition
ii. Comparison Test
1. Negligence Quality Control Argument
2. Strict Liability Quality Control Argument
a. Plaintiff
b. Defendant
b. Design Defect
i. Definition
ii. Design Defect Claim Analysis
1. What type of jurisdiction is this?
a. Negligence or strict liability
2. Run the risk utility test
a. Risk of current design in regard to frequency
b. Risk of current design in regard to magnitude
c. Utility of current design
d. Utility of alternative design
e. Risk associated with alternative design
f. Burden on manufacturer to make the product safe
3. State of the Art
a. Negligence – Was this design state of the art then?
i. If yes, D was reasonable and not negligent
b. Strict Liability – Is this design state of the art now?
i. Is there a better alternative design available now?
1. If yes, strictly liable
iii. Prescription Drugs – Drug manufacturers are immunized from strict liability (must sue under
warning or manufacturing defect)
c. Warning Defects/Duty to Warn
i. Definition – Applies only to a known risk, law only requires reasonableness, a warning will not
save D from design or manufacturing defect
ii. If a product is properly designed and manufactured, D was nonetheless give a warning if there is
a non-obvious risk of personal injury from using the product. Also, D may be liable for not giving
instructions concerning correct use if a reasonable consumer might misuse the product in a
foreseeable way
1. Example – Prescription Drug – Must contain warnings
a. Learned Intermediary Doctrine
iii. Duty to Warn Test
1. State of the Art – Refers to the context of the knowledge, only have a duty to warn of
risks that are known or should have been known
2. Risk Awareness Test
a. Process – How they went about warning the consumer
i. Where was warning placed?
ii. Was it in sufficient font to get the users attention?
iii. Did it use words like caution, danger, and warning?
b. Substance – What do good warnings consist of?
i. They identify the danger or the risk
ii. They tell you how to avoid the risk
iii. They tell you what to do if confronted with the risk
 3. Add Consumer Expectation Test – Is it a warning that the ordinary reasonable consumer
would expect to understand and adhere to? The warning is defective if an ordinary
reasonable person would find it defective.
III. Proof
a. P Must Show That:
i. The product that injured P was in fact manufactured by P
ii. The product was defective and P was injured as a result
iii. The defect was present in the product at the time of sale and was not introduced later
IV. Defenses
a. Plaintiff’s Conduct
i. Comparative fault is used
ii. P’s Misuse of Product – If misuse is foreseeable, D is liable
b. Government Standards
i. Non-compliance with government standards renders product defective
ii. Compliance is a minimum standard
1. Exception – Pro Manufacturing States
V. Defendants Other Than Principal Manufacturers/Harm Other Than Person Injury
a. Other Suppliers of Chattels
i. Sellers of Used Goods – Generally no Strict Liability
1. Rationale
2. Exceptions
b. Services - One who sells services cannot be strictly liable in a products suit (hospitals)
c. Harm Other Than Personal Injury
i. Economic Loss Resulting From Personal Injury
ii. Economic Loss Without Personal Injury
iii. Damage to Property
Defamation
I. General Principles
a. To establish a case for libel or slander, P must prove the following:
i. Material conveyed must be defamatory (Reputation Damaging)
ii. Material must be published by D meaning a communicating of the statement to a person other
than P
iii. Material must concern P and P must show that the statement was reasonably interpreted by at
least one recipient as referring to the P
iv. P must show special harm (harm of a pecuniary nature)
b. Who Can be Defamed?
i. Any living person although the defamation of the dead can defame the living
ii. A corporation can be defamed where its credit, efficiency, etc. is defamed
II. What is Defamatory Communication?
a. Elements
i. A statement must have a tendency to harm the reputation to P
ii. Within a significant (not majority) AND
iii. Respectable segment of the community
III. Reference to the P
a. Publication, inducement, colloquium, innuendo, etc.
b. Groups
IV. Libel and Slander
a. Libel
i. Defamation by written or printed words
ii. P is not required to show specific loss, can recover presumed damages (Although SCOTUS cut
back)
iii. Libel Per Quod and Per Se
 1. Per Quod – Defamation is not clear on its face, treated like slander and must prove
pecuniary loss
2. Per Se – Defamatory on its face and do not have to prove pecuniary loss
b. Slander
i. Consists of the publication of defamatory matter by spoken words or any other form of
communication other than libel
ii. Must prove pecuniary loss
iii. Slander Per Se
1. Crime
2. Loathsome Disease
3. Business, Profession, Trade, Office, etc.
4. Sexual Misconduct – Serious
V. Publication
a. Seen or heard by someone other than the P, must be intentional or negligent
b. Repeater’s Liability
c. Single or Multiple Publication
VI. Intent/Basis of Liability
a. Public Figure, Public Official, Limited Public Figure
i. Can only recover if he shows that D made a statement with actual malice:
1. Either D had knowledge the statement was false OR
2. Recklessly disregarded whether it was true or false
b. Private Individuals
i. Not required to prove malice
1. Private Figure Must Show Negligence by Media
2. Private Figure Against Non-Media D – Most require at least negligence
ii. Damages
1. Public Concern – P must prove malice to recover presumed and punitive damages
2. Private Concern – Can award presumed and punitive damages
c. Falsity
i. Matter of Public Interest with Media D – P must prove statement was false
ii. Private Figure, No Public Interest – Not clear, state may be able to choose who proves
iii. Statement need only be substantially true, not true in all respects
d. Statements of Opinion – Is not defamatory unless it implies an assertion of an underlying fact
VII. Privileges
a. Absolute Privilege
b. Qualified Privilege
Privacy (Four Distinct Mini-Torts)
I. Misappropriation of Identity
a. Elements
i. D used the P’s name or likeness
ii. The use was for the D’s own advantage or benefit
iii. The P suffered damages
iv. The D caused the damages to be incurred
II. Intrusion
a. Elements
i. The P’s solitude was intruded upon AND
ii. The intrusion would be highly offensive to a reasonable person (Must be private place)
III. Publicity of Private Life/Facts
a. Elements
i. D must have publicly publicized certain facts relating to the P
ii. The publicized facts must be private ones, that is, ones not already on public record
iii. The facts being publicized must be ones the disclosure of which would be highly offensive to a
reasonable person in P’s position AND
 iv. The facts must not be of legitimate concern to the public
IV. False Light
a. Elements
i. The false light would be highly offensive to a reasonable person AND
ii. The was done with “malice” by D
Misrepresentation
I. Introduction
a. Three Forms of Misrepresentation-
i. Fraudulent
ii. Negligent
iii. Innocent
II. Fraudulent Misrepresentation
a. Elements
i. A material misrepresentation by D
ii. Made with knowledge that the statement is false or a reckless indifference to the truth
iii. With an intent to induce the P’s reliance on the misrepresentation
iv. P reasonably and justifiably relies on the misrepresentation AND
v. Damage to the P stemming from the reliance
c. Concealment and Non-Disclosure
i. Usually Do Not Have to Disclose (Conceal is different) When Must Matters Be Disclosed?
1. Fiduciary relationship
2. To prevent a partial statement of the facts from being misleading
3. Newly acquired information, which if not disclosed, would make a previous statement
misleading
4. Facts basic to the transaction
5. When it would be difficult for P to find out or detect the problem
d. Opinion
i. P can recover if:
1. D purports to have special knowledge that P does not have
2. D stands in a fiduciary relationship OR
3. D knows that P is especially gullible
ii. Puffing or Trade Talk is not Actionable
iii. Statements About Law (Not actionable except attorneys)
iv. Prediction – Cannot be relied on
v. Intention – Can be relied on
III. Negligent Misrepresentation
a. Courts are quickest to allow recovery for negligence misrepresentation when:
i. Questions to Ask
1. Was there a serious pre-existing legal relationship (privity, like business)?
2. Was D in the superior position to discern the accuracy of the information conveyed?
3. Did D know specifically how the information was going to be used by the P?
b. Liability to Third Persons – D is liable to a much narrower class of third persons than is the maker of a
fraudulent misstatement. D is liable to third persons if (differs from privity above because even though
both involve negligence, there is no privity or serious business relationship here):
i. He intends to reach them with the information OR
ii. D knows the recipient intends to reach the third person (Must be confirmation that P received
this information, this sets the duty)
IV. Innocent Misrepresentation (Strict Liability)
a. Generally, a person has no liability for an innocent misrepresentation (weather man is always wrong)
i. Exceptions – Must be a Special Relationship (Fiduciary Duty)
1. Fiduciaries can include attorneys, guardians, administrators of estates, stockbrokers, or
anyone who undertakes to assist someone who places complete confidence and trust in
 that person or company. This person generally has more knowledge than the other
person
2. If two parties are involved in a sale, rental, or exchange transaction, and one makes a
material misrepresentation to the other in order to close the deal, he will be liable even
if innocent
a. The sale, rental or exchange must have been directly between P and D (Privity)