- Underlying tort
- Who can bring the suit
- What if the person dies
- What happens to proceeds of each case
- What about double recovery
o 3 views when tort also leads to death
- What if tort does not lead to death but death from other causes
- Statute of limitations
o Death equals statutory designation of time
o Survivor action based on underlying tort
- Interests Potentially Impacted at Death:
o Person who dies.
o People close to the person who dies.
o Person who killed that person (or is responsible for the death).
o Random 3rd party involved in an unrelated action with the person who dies.
- Traditional Rules:
o If plaintiff dies, the plaintiff’s cause of action dies with him.
o If plaintiff dies, those dependent upon the plaintiff have no redress.
o If defendant dies, plaintiff’s cause of action against the defendant also dies.
o Morgane v. State Marine Lines: Page 509.
English Felony murder Rule: Forfeit all property and executed so no need for tort against actor.
Court found this rule was outdated and not consistent with American Judicial System and Jurisdictions.
- These are third party actions (aka derivative actions).
o This means the person or entity recovering is not the person actually harmed.
o For recovery the underlying harm must first be proven.
In other words must prove the wrongful death tort first, then a proper relationship entitling plaintiff to
o The right to bring such an action is created by statute.
Wyoming: Wrongful death statute limited to spouses, children, parents, siblings. Not otherwise.
o Court looked at three objectives of the statute:
Compensation for plaintiffs.
Defendant pays for consequences.
Deter actions of defendant. A child injured at birth is valid claim, but killing it is not = Stupid!
- When a person dies there are 2 causes of action available:
o Wrongful Death.
o Survival Action:
- However: Depending on the circumstances of the situation and the law of the particular state, one may sometimes recover
damages under only one.
o NOTE: Not being able to recover damages is NOT the same thing as the cause of action being unavailable.
o In a survival action the estate is the one who collects.
o In a wrongful death claim the next of kin collects.
o Benefits of the wrongful death claim is not to be used for satisfying debts of the deceased’s estate.
o Supreme Court rules that trend is towards expansion of use of survival and wrongful death statutes.
o Survival Action provides for unredressed harms if only allowing a wrongful death so allow both and allocate monies
between the two actions.
- Double Collection Issue:
o If both survival and wrongful death are allowed its possible for plaintiffs to recover twice.
o Old rule was only wrongful death.
o Currently some jurisdictions allow recover on both WD and Survival.
o How do states address this?
Some allow both and don’t care.
Some allow only wrongful death.
Some allow both but limit recovery to prevent double recovery.
- Court finds the survival action does survive the death.
o Example: Guy dies from cancer after accident. Survival action survives his death.
When the cause of action at issue is INDEPENDENT from the cause of death, all jurisdictions allow recovery under
survivor actions. i.e. Contract claim. Property Claim.
o These actions will be against the Estate of the person who died that assumes the action.
o HOWEVER: When the cause of action at issue IS the cause of death: 3 Approaches:
Full recovery under both WD and Survivor.
Allocates recovery between the two actions.
Only allow recovery under WD. (Wyoming)
- IF THE UNDERLYING TORT CANNOT BE PROVEN, THERE IS NO WD OR SURVIVOR ACTIONS!!
- WD: Summary
o Brought by next of kin
o Action to recover by 3rd party
o Intended to compensate for pecuniary damages (medical, wages, funeral, etc.)
o Some states allow for loss of society
o No estate debt paid with this money
- Survivor: Summary
o Brought by estate as first party action
o Allows accrued action to be brought against estate as it would the person
o Allows estate to recover for causes of action as person who died would have.
o Anything recovered becomes part of estate, losses become debts of estate.
Wyoming Case: Statute of Limitations / Statute fo Repose / Discovery Rule.
o Summary: WD statute of limitations begins to run at death. (Statute of Repose)
o Survivor begins at discovery (Discovery Rule) + (Statute of Limitations).
o The statute of limitations for a survivor action depends on the underlying cause of action that survive (i.e. Contract –
o Typically the limitations period for survivor actions is subject to whatever tolling or ameliorative doctrines may be
o Wyoming: If person dies, Survivor Action is Barred…Only WD claim. Watch out for Repose vs. Discovery &
- How to defend a claim:
o Negate an element of plaintiffs claim.
Plaintiff fails to carry the burden with respect to a particular element.
o Prove an affirmative defense.
Assumption of risk.
o Assert a defect that will preclude recovery.
Statute of limitations
- General: Apply to most torts of a specific type
- Specific: Available to address only one type of claim. Ex. Supervisor Sexual Harassment.
- Work just like a cause of action:
o Set of elements must be proven.
o Burden of proof is on defense.
o Usually a preponderance of the evidence standard.
Contributory Negligence: IF THIS EXISTS THEN DO COMPARATIVE FAULT.
o Contributory negligence is an affirmative defense. Contributory negligence is the plaintiffs failure to use due care for
their own safety which is the proximate cause of the plaintiffs injuries.
Elements: Duty, breach, causation, damages.
The difference is the defendant must prove the elements rather than the plaintiff.
Duty and Harm are usually pretty easy.
Breach and causation are the contested issues:
• Even if a plaintiff has clearly breached a duty, if that duty is not the actual and proximate cause of the
plaintiffs injuries the defense is not available.
o Traditional Rule: Contributory negligence on the part of the plaintiff precluded all recovery.
o Modified Rule: Last Clear Chance Doctrine: Doctrine that places liability on the person last able to avoid or mitigate a
o Modified Rule: Comparative Fault Doctrine: Doctrine which allows an otherwise contributory negligent plaintiff to
recover. Compares the fault of all the potential Tortfeasors and only recover in proportion to ones fault.
o Example Case:
1) Pure: Compare fault and reduce proportionately. 10%@ $1M damages v. 90%@ $8K.
2) Higher Proportion: Plaintiff can recover as long as plaintiffs degree of fault is Not Equalto or greater than the
combined degree of fault of the other parties. Number is 49%
3) 50% rule: Cannot recover if plaintiff is more than 50% liable. Number is 51%. 50% is ok…see pure above.
Joint & Several Liability & Contributory Negligence:
This also applies to joint and several liability. Total liability jointly is reduced proportionately…unless modified by
statute as in Wyoming which only allows proportional several liability.
Comparative fault essentially eliminates the last clear chance doctrine…this is now just evidence of fault which will
be taken into account.
Comparative fault in Wyoming does not apply to intentional torts.
o Problems with comparative fault created by multiple defendants:
What do you do with joint and several liability in a comparative system?
• Some states eliminate Joint and Several Liability: Wyoming. You need to name and drag all
defendants into court at the same time.
o In jurisdictions that have kept joint and several liability what most do is compare the fault of
the individual defendants with the fault of the plaintiff. They then allow defendants named to
counter sue other defendants.
What happens when the level of plaintiffs fault doesn’t exceed 50% but exceeds the percentage of one or more
o Some refuse to allow recovery if plaintiffs liability is more than any defendant.
o Some just compare plaintiffs liability to that of each defendant.
o Case page 78 Burman:
Group driving car instructed to proceed through police roadblock and were struck from behind by a fleeing
Guy running from cops ends up in jail and is not named in the suit. Only the troopers, Sheriff, and forest
Appeal is why isn’t guy fleeing named as defendant and assigned a % of the fault.
Court evaluating whether guy was negligent or reckless…reckless is intentional tort…not unintentional
negligent tort. Question…can an intentional tort action be included in the comparative fault?
Plaintiffs don’t want him reckless guy included as state has more money…guy is a criminal.
Also, if guy is included, he will be like 99% at fault. Only 1% state and very little recovery.
Court interprets statute saying “any measure of negligence” as including willful and wanton and reckless…
Wyoming thus allows comparing all types of fault when apportioning liability.
THIS IS NOT THE RULE IN MOST JUSRIDICTIONS. MOST COURTS ONLY ALLOW
COMPARISON BETWEEN NEGLIGENCE AND STRICT LIABILITY:
• Why? Because intentional torts have a different burden of proof than negligence and comparing
them is difficult.
Some will not allow comparison of negligence and intentional torts when the intentional tort falls within the
scope of the risk to be protected against.
• Example: Psychiatrist doesn’t warn employee…had a duty to protect employee and didn’t…thus
cannot compare intentional conduct patient against negligence f psychiatrist as it takes away from
the duty of the psychiatrist.
• A lot of time intentional tort gets 100% of fault. In this case we don’t want this because the
psychiatrist had a duty and allowing the intentional tort guy in eliminates that duty.
o SEAT BELT RULE:
Interlocutory appeal over whether evidence of seat belt use in the past should be admitted.
Plaintiffs were not wearing seat belts and were thrown from car. Defense wants this in.
Trial court said t was out. Appeal court said its in.
Why? Avoidable consequences doctrine. Doctrine says plaintiff cannot recover for losses that could have been
avoided by reasonable precautions taken before the accident.
Since comparative fault now…plaintiff is not completely barred from recovery. As such and with fact that an
accident is likely at some point in your life, you have a duty to take a precaution.
This is not a duty in the traditional sense. It is not fault in the traditional sense. This is important because we
are not considering the plaintiffs fault relating to the accident bt only to the reduction of the damages as a result
of failure to mitigate it.
So, if you can show the lack of seat belt use did not INCREASE the damages you do not lose some of your
• Some jurisdictions the failure to use seat belts may be seen as a form of contributory negligence.
• In others failure to use them falls under the concept of avoidable consequences and thus limits the
amount of damages recoverable.
Policy: Take precautions to avoid FORESEEABLE harms.
- Assumption of Risk:
o Express Assumption of Risk:
Where plaintiff either by contract or otherwise expressly agrees to accept risk of harm; the plaintiff is
generally barred from recovery. (Financial Advisor)
S.CT said 3 reasons we would not enforce agreement:
• We don’t want to encourage intentional harms or acts…Gross Negligence.
• Unfair agreement…public policy reasons…Undue Influence due to monopoly. (Gas Co.)
• Unfair bargaining power…Fraud and Duress.(Mob Boss)
Trial court said agreement is valid…so did the MD Supreme Court.
Implied Assumption of Risk:
Cardozo Case. (lopper Case)
• When a risk is obvious and or known and understood by the plaintiff, the plaintiff cannot recover
when the harm for which the plaintiff was at risk actually occurs.
Knight v. Jewett Case Page 554: (Football Case)
• Court says there are 2 categories of implied risk cases:
1. Those where the legal duty of a special class of defendants is at issue.
2. Those where the defendant has clearly breached a legal duty.
• Given this info this means there are 2 types of assumption of risk:
1. Primary Assumption of Risk: No duty for defendant to protect plaintiff because of
inherent risks of activity an duty. Reasonable duty based on nature of activity = legal
conclusion of no duty. (Negligence is not enough). (Football)
2. Secondary Assumption of Risk: Duty exists and plaintiff knowingly encounters risk
because of defendants breach of duty. (Comparative Fault). (Negligence is enough).
(Ski lift malfunction and you still get on it = they breached duty but you are
comparative fault liable.)
• The operative Question: When determining whether the situation involves a primary or secondary
assumption of risk is whether the nature of the duty owed has been changed.
• When the nature of the duty is changed (primary) then the assumption of risk doctrine acts to bar
1. Essentially what happens is there is no negligence claim. Either there is no duty or the
duty is lessened to refrain from reckless or more severe actions.
• When the nature of the duty is NOT changed (secondary) then the assumption of risk doctrine
essentially works like contributory negligence (comparative fault) and just reduces the amount of
• SCOPE OF RISK Exception: Even when a primary assumption of risk situation arises, a
Plaintiff may still recover when the defendants conduct is intentional or so reckless as to lie
outside the range or scope of ordinary activity. Jewett case, she assumed the risk for negligent
activities associated with the game. If he had pile driven her into a tree tackling here this
would not be barred.
Assert a Defect That Precludes Recovery:
- Statute of Limitations / Statute of Repose: Statute that bar the ability to bring a claim due to passage of time. (Prejudice and
o Statute of Limitations: Time begins to run when all of the elements of a claim have accrued.
o Statutes of Repose: Outer limit to when you are eligible to bring a claim.
o Generally exceeding the statute of limitations or of repose completely bars a plaintiffs ability to recover.
o When a cause of action at issue arises under the common law the substance of the action determines which statute of
limitations will apply. (Personal Injury SOL Barred in Acid Case)
When the cause of action arises under a statute the statute of limitations for that statute will be applicable provided
that the plaintiff can establish the existence of a cause of action under the statute. (UCC Warranty Available in Acid
Nelson v. Krusen Case Page 569:
Muscular Dystrophy case. Didn’t discover until 3.5 years but SOL for medical claim is 2 years.
Court held rule would be unconstitutional barring access to courts before known cause of action existed.
Discovery rule: Generally a given SOL does not begin to run (or is tolled) until discovery of the cause of
Examples of other tolling provisions:
Wyo. Stat. 1-3-116: Absence, abscondence or concealment.
Age of maturity provisions.
Continuing violations doctrine.
- Immunities: An affirmative defense to tort liability given to an entire class of people because of:
Classes of Immunity Based On:
Relationship to plaintiff
Other policy reasons
Spousal Immunity: Largely gone away.
Parent Child Immunity:
Reasons for familial immunity:
• Fiction of oneness.
• Family tranquility.
• Fear of flood of litigation.
• Desire for parental discretion.
Spousal Immunities: (Dellapenta Case Page 86 Supplement)
WD children brought by father against mother for not putting on seat belts.
Is not buckling seatbelts negligent? Do you have a duty? YES!
Big picture: Spousal immunity is all but gone. Parental immunity has been abrogated for certain
things (auto accidents) in about 1/3 of states including Wyoming.
Those states that haven’t abolished still recognize several exceptions:
• Emancipated children
• Relationship terminated by death
• Child is suing for WD of other parent
• Intentional or willful conduct
• Property rights, contract rights, or for pecuniary loss.
Those states that have abrogated parental immunity still retain immunity with respect to decisions exercised
within the realm of parental discretion.
Fogel Case Page 580:
Court awarded 45% of loss to mom for WD and survivor action.
Mother appealed survival action reduction. ? is can a mother be held liable for discretionary negligence in
Mothers’ argument: Parental immunity as it is an issue of parental discretion and thus no claim against her.
Court agrees. Parental immunity bars 45% claim against mother by childs estate so defendant has no claim
against mother and thus survivor action against Apartment complex is 100%
Immunity based on discretion applies when:
• Parent engaged in reasonable exercise of discretion
• Parent engaged in ordinary act of discretion regarding child…
General Rule: A tortfeasor can only obtain contribution from a joint tortfeasor if that joint tortfeasor
would have been liable to the plaintiff for the amount of the contribution sought.
Effect of Immunity: If a person is barred from suing a tortfeasor due to an immunity, a joint
tortfeasor cannot obtain contribution from the immune tortfeasor.
- Governmental Immunities:
o Rational For:
Idea of sovereign: that which is the source of laws and rights and creates the courts cannot be made to
answer to those same courts.
Potential separation of powers issue.
Problem of using public funds to redress private harms.
o Municipal Government Immunity:
Generally immune for governmental activities but not proprietary activities.
• Governmental: Those activities involved in running the local government. Police. Fire
Departments. Health inspectors.
• Proprietary: Those activities that produce revenue for the government (maybe joined with private
company). Utilities. Airports. Construction projects.
- Governmental Claims Acts: Outline rules for when state and federal government can be sued.
o Page 92 Burman Supplement:
Immunity to firefighters as long as not willful wanton conduct or ordinary negligence in operation of a
o Charitable Immunity:
Designed to encourage persons to participate in non-profits and volunteer positions.
Often the individual is immune but the entity is not.
o You don’t always get to sue the government.
- The Wyoming Governmental Tort Act outlines where and when you can sue.
o First Big Limitation:
You only get to sue when the tort is within the scope of the employment of that governmental agency.
o Second Big Limitation:
Must attempt to recover claim directly from Governmental Agency First.
Administrative Remedy Option. Procedural remedy. Failure to do so is a bar to recovery. This means
both the entity and the governmental agency that administrates the entity.
o Third Big Limitation:
Generally limits to recovery. Such as compensatory only but no punitive or pre judgment interest or a
monetary cap associated with a single incident.
o Fourth Big Limitation:
Discretionary Function Exception. Agency is Immune if damages occurred as a result of a failure to
perform a discretionary action / function / duty of the entity or its agents.
Birkovitz case page 596. (Child Immunization Case)
• Supreme Court reversed and remanded as there is a question of material fact as to whether the
actions were discretionary.
• Is it the nature of the conduct OR the status of the individual? Court said it’s the nature of the
• As there are policies that must be followed, there may not be any discretion opening the agency up
to liability. Employee must follow regulation.
• Done because we don’t want the judiciary second guessing the executive branch through torts.
• IN THIS CASE:
1. Issuing the license? Were the regulations followed for determining if the product should
be licensed? If not there is a liability issue here.
2. Approval release of the lot of Orimune that contained Berkovitz’s dose? Did they follow
procedure in testing this lot. Did they follow procedures on testing. It depends on how
we characterize this issue? Two ways you can sue, one way you cannot. It’s a question
for discovery. Essentially they said to plaintiffs: Refile…claiming it this way so you
have a case.
- In order for a potential vicariously liable defendant to be held liable, the primary tortfeasor must be liable for the underlying
o One of the first things to look for is the nature of the primary underlying tort. Intentional, negligent…
o If, under the circumstances, a person meets the factors indicating that the person is an employee, that person will be
considered an employee regardless of that persons position within a particular organization.
- RESPONDEAT SUPERIOR:
o Hold the superior liable for the actions of the subordinate because of the relationship between them.
o You can actually sue both parties but often superior has deeper pockets and is in a position to police actions of
Prevents future injuries, provides greater assurance of compensation, requires those who benefit from actions to bear
the costs of those actions.
o Elements: USE THIS TEST FOR NEGLIGENCE CLAIM: For intentional go down to activity and motive
Actionable Conduct: The commission of a wrongful act.
Requisite Relationship: Employer/employee or agent/agency.
Wrongful Act committed within the course and scope of employment or agency.
Must prove underlying tort first: (Negligence)
Thus the best defense, given the requisite relationship exists, is to attack the underlying tort.
- Employee/Employer & Independent Contractor:
o Employee / Agent: (Kid House Party Case)
Employee is described as one who is suffered or permitted to work for another; Employer has right of
Court finds kid is not an employee for purposes of Respondeat Superior relationship.
He was not in the scope of what he was “employed” to do. Feed cat/get mail.
Alternatively argue he is an agent: Fiduciary relationship which results from manifestation of consent and
direction subject to principles control. (The right of control.)
Court found not an agent as principle must have knowledge of and control over agents actions.
Principles never gave consent to this party (action). Summary Judgment affirmed.
o Independent Contractor: (Blockbuster Advertising Case)
Independent contractor question. Hired by Blockbuster to do air balloon advertising. Auto Accident on
Ten factor test to determine if independent contractor or employee. (Page 616).
Who has Control; Distinct Occupation; Need for Supervision; Skill; If Employer Supplies Stuff or
Workplace; Length of Time, Method of Payment; If Work is Part of Regular Business of Employer; Belief
Employee of IC; IC Self Employed.
Page 13 Supplement: Independent Contractor v. Employee.
Most important is control issue.
o IC v. Employee: Absent special exceptions, one is NOT generally vicariously liable for the acts of an independent
o Louisiana Hunting Case:
Is defendant’s use of the camp within the course and scope of his employment as the CEO of his company.
Answer YES. He did use it to promote his company a lot.
Is it foreseeable that he will incur some costs while using the camp for employees and clients? YES.
It is also foreseeable that he could experience this kind of harm in that use. Plus…its likely that his
business is always benefiting from his social relationships.
If, under the circumstances, a person meets the factors indicating that the person is an employee, that
person will be considered an employee regardless of that persons position within a particular organization.
Generally an employer is liable only for the acts of a servant that are reasonably foreseeable given the
nature of the employers business.
ARISING OUT OF/FORSEEABILITY DOCTRINE: An act is reasonably foreseeable in this context if the
employees conduct is not so unusual or startling that it would seem unfair to include the loss among the
other costs of the employers business.
• Whether the act can be fairly regarded as typical or broadly incidental to the enterprise.
• Policy Reasons: A business should not be able to disclaim responsibility for accidents which are
characteristic of its activities.
Scope of Employment:
- COMING & GOING RULE:
o Generally an employee is not within the course and scope of employment when traveling to and from the worksite.
The employee explicitly or impliedly renders a service during the course of the commute;
The trip involves an incidental benefit to the employer not common to the ordinary commute.
o Special Errand Exception:
Injuries incurred through the ordinary use of streets and highways is generally not within the course and
scope unless such use is required as part of the performance of duties.
A journey may come within the course and scope of employment if the trouble and time of making the
journey, or the special inconvenience, hazard, or urgency is sufficiently substantial to be viewed as an
integral part of the service.
o Other Exceptions:
Special Hazard: Employee may be within the course and scope when traveling to and from work subjects
the employee to a special hazard not common to the ordinary public.
Employer Payment: Paying an employee for the travel time to and from work may bring the action within
the course and scope of employment.
- FROLICS & DETOURS:
o DETOUR: Slight departure from the job or work assignment. These generally do not take an employee outside the
course and scope of employment. (Salesperson case with care accident detour)
o FROLIC: When the employee departs the job for a significant amount of time or for his own purposes and the
conduct is seen as unrelated to employment. The employee will usually be considered outside the course and scope
- Work Comp and Scope:
o Double edges sword: If you get out from work comp as not within course and scope, you just admitted you were not
within course and scope which hinders your vicarious liable claim against employer.
o You then would need to show some other tort such as employer negligence in hiring that other employee.
- VICARIOUS LIABILITY & INTENTIONAL TORTS:
o Motive Approach:
Intentional tortious conduct may lie within the course and scope of employment if:
• It is specifically authorized by the employer;
• Actuated at least in part by a purpose to serve the employer (dual purpose doctrine).
• Bar Bouncer Case. In the time and space of employment: YES. Is it intended to further the
employers business: Yes.
Intentional tortious conduct generally DOES NOT fall within the course and scope when motivated
PURELY by the employees personal interests.
o Direct Liability of an Employer: An employer may be liable for an employees intentional tort if the employer has a
duty to protect a third party and the employer in negligent with respect to that duty:
An employer may be liable for negligent tort under the same theory.
These are often brought as negligent hiring actions.
o Three ways for liability: Plaintiff may sue for: Employee directly liable. Employer vicariously liable. Employer
liable for negligent hiring. Bring all three at the same time. Can collect for two: Negligent hiring and one other.
o Burden of Proof:
Once the requisite relationship is established, the burden of proving the employee acted outside the course
and scope of employment rests with the employer:
The presumption is that the employee acted within the course and scope.
o Activity Approach: Operative Questions:
Whether the act was within the scope of the duties of employment. Was it like those actually authorized?
Whether the act was committed in the execution of the service for which the employee was engaged.
• Therapist Having Sex With Patient Case. (Close Case. Selling drugs wouldn’t be.)
o MOTIVE and ACTIVITY Tests apply only when you have an INTENTIONAL TORT. Negligence isn’t an
- Apparent Agency Doctrine:
o When a principal creates the appearance that someone is an agent it cannot deny the agency when an innocent
party relies on the apparent agency and is harmed as a result.
o To prevail a plaintiff must show: The injury would not have occurred but for the injured party’s justifiable
reliance on the apparent agency.
Punitive Damages: (Military School Case)
• Punitive damages can be assessed against employer/principal for:
1. The vicarious tortfeasors own malicious conduct; i.e. cover up the underlying tort.
2. The malicious conduct of its officers or higher ups or for those lawfully acting for the
officers or higher ups.
Punitive Damages can be assessed against the employer/principal for:
• The malicious conduct of an agent or employee, regardless of position or status, if the
1. Directed the act;
2. Participated in the act;
3. Ratified the act.
- General Rule: Principal NOT Liable for Torts of Independent Contractors.
o Exceptions: A principal is responsible for the manner and performance of nondelegable duties and will be liable to
third parties if he hires another to perform such duties.
o Vicarious Liability for Acts of Independent Contactors:
Non Delegable Duties:
Dangerous activities: Transport guns for military;
Duties imposed by statute or administrative regulation: FDA
Maintenance of land: Premises liability cannot be passed on to IC.
Work that causes a trespass or nuisance:
Work others hire you to do in reliance of the fact that you will conduct the work yourself.
Act to be performed will cause injury to others unless due precaution is taken.
Act to be performed is illegal.
o Principal/employer may be liable for negligently hiring an independent contractor either as a separate exception or
under one of the nondelegable duties.
o Comparative Fault: In some cases, employee may be int the best position to avoid the harm and as such most of the
fault would fall on the employee and thus in they will get little(less than 50% fault) or no(more than 50%
- Joint Enterprises/Ventures:
o ELEMENTS: Joint Enterprise/Joint Venture(Venture = For Profit)
An Express or Implied Agreement
Equal Voice Which Gives an Equal Right to Control.
o Joint Venture = For Profit = Vicarious Liability for Actions to 3rd Parties and Fiduciary Obligation to Group.
o Joint Enterprise = Not For Profit = Vicarious Liability Only To 3rd Parties.
o Concerted Action: One who is not an employer, principal, or engaged in a joint venture or enterprise may be
vicarious liable for another when:
Acts in concert with another pursuant to a common design,
Gives substantial assistance or encouragement to another in breaching a duty,
Gives substantial assistance to another and own conduct would constitute a separate breach of duty.
Reason not JE or JV is lack of equal control.
HOW TO KNOW WHAT WORLD YOU ARE IN:
- Figure out whether or not there is purposeful or accidental conduct.
- See id the activity/conduct in question involves one of the subjects of strict liability:
o One acting on behalf of another;
o Dangerous activity;
- Things to remember:
o A given situation may give rise to intentional, negligent, and strict liability torts. They are NOT MUTUALLY
o Strict Liability, by definition, means there does not have to be a showing of fault. Essentially we are looking at
whether the conditions of liability have been met:
Did you have a wild animal? Don’t care about fault.
Were you hauling gas? Don’t care about fault.
Strict Liability: HISTORICAL
o Originally only allowed for punishment of crimes, later redress also allowed. Only had to show:
Direct application to person or property.
- Trespass on the Case of Case:
o Covered cases where plaintiff harmed but not from defendants direct force.
Required proof of culpability and damages.
o Case Page 21 In Supplement:
If you engage in conduct, the result of which is the direct application of force to another or another’s
property and that force causes injury or damage then you are liable.
o Case Page 22 In Supplement:
Military exercise when gun accidentally discharges injuring Plaintiff.
Exception to direct force rule: If force is inevitable.
• If someone takes your hand and hits someone with it.
• If plaintiff runs in front of your bullet.
• These are inevitabilities.
Exception as of 1616: Purely accidental conduct for which the defendant is entirely without fault.
- Fast Forward to 1850: Page 10 Case Book Brown v. Kendall Case:
o Two dogs fighting with sticks. One guy accidentally hits other guy in eye with stick.
o If defendant under a duty to beat the dogs, such that his act was necessary then he need only use ordinary care. If
beating the dogs was a lawful act, but there was no specific duty, then the defendant is liable unless he exercised
o This case is significant because:
Establishes “fault” as a primary basis for tort liability;
Shifted burden of proof from Defendant to Plaintiff.
Three areas where strict liability still exists: Animals, Abnormally Dangerous Activities, Nuisance:
- Wild Animals:
o General Rule: Owner or possessor of nondomesticated animal is strictly liable.
o Animals not customarily used for the service of humans.
o Foreseeable Harm here as well. Yes. To the nature of the harm characteristic of that animal.
o You can still use comparative fault and assumption of risk as defenses.
- Domesticated Animals:
o Only liable for the harm that is expected from that animal
o Foreseeablity—looking more at the nature of the harm
- Anderson v. Two Dot Ranch, Inc.* (Bridgeman supp. pg. 24)
o Trespassing animals
o Old English common law: strictly liable for trespassing animal unless lawfully driving animal down the highway
o Two Dot not liable—has a general duty—but when land is not enclosed and when animals are where they can
lawfully be, the motorist has reciprocal duty to prevent accident
- TRESPASSING ANIMALS
o Fence In Rule—Every person bound to keep livestock on own land. To the extent he/she fails to do this and
livestock trespass and do damage, owner will be strictly liable.
o Fence Out Rule—Livestock owners are not obligated to keep animals on own land, but are strictly liable if animals
trespass and breach a lawful fence.
o Open Range Doctrine—Livestock free to run at large, and to the extent such livestock wander upon and depasture
unenclosed land, there is no trespass action.
The absence of a trespass action is premised on the absence of a duty, rather than the absence of an actual
o Open Range Doctrine—Exceptions
Fenced public highways
Livestock district statutes
County sets fictional boundary lines and if animals run at large w/in the boundaries defendant is strictly
o Despite the availability of strict liability suits, negligence suits may also be brought against livestock owners who
fail to use reasonable care in a given situation.
- DOMESTICATED ANIMALS
o Theories of recovery:
Strict Liability—defendant is strictly liable if knew or should have known of dangerous propensities.
Common Law Negligence—in care and control of the domestic animal.
Negligence premised on statute—duty to control a domestic animal created by statute or ordinance.
o Difference Between theories:
Strict Liability v. Common Law Negligence:
• If know an animal has a dangerous propensity one may be strictly liable even if negligence can’t
be proven (even if one takes due care)
Negligence v. Negligence premised on a statute:
• In the former, the duty is one recognized at common law, in the latter the duty is imposed by
statute or ordinance.
Scienter v. Foreseeablity:
• Scienter—a question of whether one knew or had reason to known the animal had dangerous
o Whether one may have suspected the animal would harm another, or had some idea what
type of harm the animal might inflict is irrelevant.
• Foreseeablity—requires (as always) that the type of harm that occurs was foreseeable under the
- Abnormally Dangerous Activities and Strict Liability
o Fletcher* v. Rylands:
o Fletcher had a mine, digging under Ryland’s property; Ryland builds a reservoir; hired competent engineers to build
the reservoir and has no idea the mine shafts are underneath his land. Reservoir breaks and water destroys mines.
o EXCHEQUER DECISION (Trial Court) Rules of Law:
• By causing the water to flow, defendants did what they did not have the right to do and are
• Thus the guy who built the reservoir would be liable.
• No trespass b/c harm not immediate
• No nuisance b/c the act was lawful and reasonable and making a pond is not harmful or injurious
to the senses.
• Not negligent b/c had no reason to believe or suspect damage likely to ensue.
• Thus the guy who built the reservoir would NOT be liable.
Court decides he is liable!
o HOUSE OF LORDS DECISION (Supreme Court): RYLANDS v. FLETCHER RULE:
If one brings something onto ones land which, if it were to escape, would be likely to cause harm, the
person is liable for all the damage that is the natural result or consequence of the escape.
Court affirms liability.
o Exceptions to Ryland Rule: (Wheatland dam breaking case in supplement)
Act of God.
Act of stranger or 3rd party.
Things naturally on premises.
Things brought upon the land for Plaintiffs benefit.
Escape caused by Plaintiffs fault.
Authorized by statute to bring or keep dangerous things on premises.
o In this opinion however, the court says this rule doesn’t apply.
- Dangerous activity: (Tanker truck case)
o Tanker truck hauling gas. Tandem detaches and crashes off cliff. Spills on the roadway. Car ignites it. Woman
o This type of accident its almost impossible to determine what happened due to fire destroying everything.
o Theories: Negligence, Res Ipsa Locuitor: Court fails to instruct on Res Ipsa BUT:
o Court suggests that this is a strict liability instruction case as it’s a dangerous activity.
o Policy: Between the innocent third party and the person engaged in the dangerous activity the liability must fall on
the dangerous activity party. This is especially important in cases where activity may destroy proof. (gas burning).
o THUS: The strict liability rule from Ryland continues to apply in most jurisdictions to what are considered
abnormally dangerous activities; aka ultra hazardous.
- Indiana Railroad Case Page 679:
o Abnormally dangerous activity factors: Page 39 Supplement:
§ 520 Restatement of the Law, Second, Torts.
• Existence of a high degree of risk of some harm to the person, land or chattels of others;
• Likelihood that the harm results from it will be great
• Inability to eliminate the risk by the exercise of reasonable care;
• Extent to which the activity is not a matter of common usage;
• Inappropriateness of the avtivity to the place where it is carried on; and
• Extent to which its value to the community is outweighed by its dangerous attributes.
There are some situations where no matter how much care is used accidents will still happen. Then strict liability is
appropriate. However, if due care is the question, then negligence is the issue.
If due care can avoid the danger of the activity then the proper claim should be negligence.
If, despite due care, the activity is STILL dangerous, then strict liability is appropriate.
Distributive vs. Allocative:
Distributive: Who has the deepest pockets: Employer / Employee situations.
Allocative: Who has the best ability to absorb the loss? Allocate liability to party who can handle it.
In this case the judge finds that due care would have avoided danger and harm. As such, a negligence claim is
proper, not strict liability.
The chemical wasn’t the cause…it didn’t eat through or somehow contribute.
It was that someone didn’t maintain the rail car valves.
Distributive Rule: The defendant chemical company may be the best as a chemical company has more
Allocative Rule: The rail line may be the one who has the means to prevent the chemical from traveling
through metro areas.
When the conduct is question is not abnormally dangerous, the rule to apply is negligence rather than strict liability.
Rest. § 520 Factors:
Essentially, these factors help identify when an accident or risk of an accident cannot be avoided by taking
- Public Nuisance: Second Restatement of Torts
o A Public Nuisance is 821(B):
o Unreasonable interference with a right common to the general public.
o Circumstances that may sustain a holding that an interference with a public eight is unreasonable include the
Whether the conduct involves a significant interference with the public health, safety, peace, comfort, or
Conduct proscribed by statute, ordinance, or administrative regulation; OR
Conduct of continuing nature, produced permanent or long lasting effect, and as the actor knows or has
reason to know activity has a significant impact upon a public right.
o Who Can Recover: Section 821(C):
In order to recover damages in an individual action for a public nuisance, one must have suffered a harm of
a different kind from that suffered by other members of the public exercising the right common to the
general public that was the subject of interference.
In order to maintain a proceeding to enjoin to abate a public nuisance, one MUST:
• Have the right to recover damages, as indicated in Subsection 821(C)1; OR
• have authority as a public official or public agency to represent the state or a political subdivision
in the matter, OR
• have standing to sue as a representative of the general public, as a citizen in a citizens action or as
a member of a class in a class action.
- Private Nuisance: 821(D) Nontrespassory invasion of another’s interests in the private use and enjoyment of land.
o Types of Activities:
Intentional; Negligent; Abnormally Dangerous Activity such that Strict Liability Applies.
o Who can recover: 821(E): For a private nuisance there is liability only to those who have property rights and
privileges in respect to the use and enjoyment of the land affected, including:
Possessor of land;
Owners of easements and profits in land;
Owners of Nontrespassory estates in the land that are detrimentally affected by interference with their use
and enjoyment of the land.
o Section 821(F): Significant Harm: There is liability for a nuisance only to those whom it causes significant harm,
of a kind that would be suffered by a normal person in the community or by property in a normal condition used for
o Section 822: General Rule: One is liable for private nuisance if and only if the interference with (invasion of) the
use and enjoyment of another’s land but only when that interference is substantial and:
Intentional and unreasonable; OR
Unintentional but actionable under negligence; OR
Unintentional but actionable under strict liability for abnormally dangerous activities.
YOU MAY HAVE MULTIPLE RECOVERIES. (Negligence and Nuisance)
o Often when a particular activity affects many people both public and private nuisance actions will be available.
- Case Page 55 Supplement:
Neighbor builds huge fence that obstructs neighbors view. Had been living there for 20 years.
He says it’s a windbreak. Neighbors think it was to piss them off as he planted a flag on top.
Court said it was both; useful and to piss off. Trial court let it stay.
Trial Court said its benefit was less than the harm to the neighbor and it was intentional.
Since it had some use the plaintiff cannot recover. Plaintiff appeals.
S. Ct.: Old rule in Wyoming is you can build a fence as high as you want.
Section 829 Gravity v. Utility: An intentional invasion in another’s use and enjoyment is liable when the harm
is substantial and the conduct is:
• Inspired solely by hostility and desire to cause harm; OR
• Contrary to the common standards of decency.
Section 824: Types of Conduct Essential to Liability: The conduct necessary to make the actor liable for
either public or private nuisance may consist of:
• An act; or
• A failure to act under circumstances in which the actor in under a duty to take positive action to
prevent or abate the interference with the public interest or the invasion of a private interest.
Section 825 Intentional Invasion: An invasion of another’s interest in the use and enjoyment of land or an
interference with the public right, is intentional is the actor:
• Acts for the purpose of causing it; OR
• Knows that it is resulting or is substantially certain to result from his conduct.
Section 826 Unreasonableness of Intentional Invasion: An intentional invasion of another’s interest in the
use and enjoyment of land is unreasonable if:
• The gravity of the harm outweighs the utility of the actors conduct; OR
• The harm caused by te conduct is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct not feasible.
Section 827: Gravity of Harm: In determining the gravity of the harm from an intentional invasion of
another’s interest in the use and enjoyment of land, the following factors are important:
• The extent of the harm involved;
• The character of the harm involved;
• The social value of the law attaches to the type of use or enjoyment invaded;
• The suitability of the particular use or enjoyment invaded to the character of the locality; and
• The burden on the person harmed of avoiding the harm.
Section 828: Utility of Conduct: In determining the utility of the conduct that causes an intentional
invasion of another’s interest in the use and enjoyment of land, the following factors are important:
• The social value that the law attaches to the primary purpose of the conduct;
• The suitability of the conduct to the character of the locality; and
• The impracticability of preventing or avoiding the invasion.
Section 829 Gravity v. Utility: An intentional invasion in another’s use and enjoyment is liable when the
harm is substantial and the conduct is:
• Inspired solely by hostility and desire to cause harm; OR
• Contrary to the common standards of decency.
- “Coming To The Nuisance Doctrine”. Balance the equities. Page 702 Case: Del Webb
Yes there is a Private Nuisance. Flies, smell, etc. Trying to sell lots and is Interfering. This is different harm
than the general public.
Yes there is a Public Nuisance. Flies, smell, etc. Health risks.
Yes you are entitled to an injunction BUT must indemnify Spur as Del Webb brought development to the
- Steps for analyzing a Nuisance Claim:
o Determine whether it appears there is a public or private nuisance;
o Determine whether the party(s) in question likely have standing;
o Figure out whether the conduct is intentional, negligent, or involves strict liability;
o Apply the appropriate rule(s)
o Explain why it’s a private or public nuisance. It is unreasonably interfering with another use and enjoyment.
o Why do they have standing? Must be possessor. Must suffer harm different than general public.
o Is there both public and private nuisance? You can have both.
o Is it intentional, negligent, or strict liability (dangerous activity)?
Go through the Restatements Sections 821 to 829 above:
- Nuisance Remedies:
Plaintiff may seek damages for prior harm up until the suit, and
Damages for future harm.
Plaintiff must show that damages are not a sufficient remedy, and
Harm to plaintiff outweighs utility of defendants conduct.
See Rest. Sect. 827-828
Note: Although an injunction is a remedy, in real life it is often pled as though it is a cause of action.
- Defense to a Nuisance:
o Coming to the Nuisance Doctrine:
Where plaintiff purchases property knowing of the existence of the nuisance.
Essentially this is a form of assumption of risk.
Old Rule: Plaintiff barred from recovery if they came to the nuisance.
Current Rule: Coming to the nuisance is a factor to consider when determining if a plaintiff can recover.
• Rest. Sect. 840D. Comparative fault.
o Other Defenses:
Contributory Negligence: is a defense if a nuisance results from negligence or an abnormally dangerous
activity (when contributory negligence looks like implied assumption of risk).
• Contributory negligence is usually not a defense when the nuisance results from intentional or
reckless conduct by the defendant.
• Contributory negligence applies when harm is negligent or abnormally dangerous.
• Contributory negligence does not apply if the harm is intentional.
Standing: Having no standing:
• Private Standing: Rest. Sect. 821E. SEE ABOVE.
• Public Standing: Rest. Sect. 821C. SEE ABOVE.
- Samuels Case Page 709:
o Defendant runs salvage company that salvages metal scrap.
o Plaintiff claims vibrations and noise. 24 of 32 complaints by one person.
o For a public nuisance plaintiff must suffer a harm different from the general public.
o As these people complaining do not have standing, the state is bringing the public nuisance claim. Sect. 821C
o Trial court granted injunction. Appeal court reverses and says to broad.
o Preliminary injunction was to stop business all together. Didn’t limit just to time of operations which it should have.
o Rule: The fact that the defendant is operating a legitimate business (zoning) (statutes) and has done everything
possible to abate the nuisance (noise dampers etc.) is irrelevant. Dose not matter how long business has been there.
If its a nuisance it’s a nuisance.
o Those factors do however affect the equitable decision as to whether or not they issue a permanent injunction and
shut down the business.
In this case the initial ruling termination its operations was too broad. Only limited hours of operation.
o Additionally, the defendant does not need to be prosecuted for a criminal statute before the court has jurisdiction to
issue an injunction for nuisance claims.
- PRODUCTS LIABILITY:
o Contract rule--- Negligence-- Strict Liability.
Original Rule: Privity of Contract:
• Express: Manufacturer or seller specifically warrants that a product will perform in a certain way
or is adequate for a particular use.
• Implied: General idea that goods will be fit for the ordinary purposes for which they are used.
Current RULE: STRICT LIABILITY.
OLD RULE: Page 63 Supplement: Winterbottom v. Wright:
Stage Coach breaks down. Wasn’t repaired properly. Defective wheel crumbles and injures plaintiff.
Question is whether or not he can sue Wright because Winterbottom does not have Privity of contract.
Court says he cannot sue as this would expand liability to everyone everywhere.
OLD RULE: Plaintiff may only recover for damages sustained due to a defective product when the
plaintiff is in Privity with the alleged defendant.
• Privity means either the immediate purchaser or one of the parties to that contract regarding that
• EXCEPTIONS: Assumption of public duty; Public Nuisance.
Intervening Rule: Page 719 Case:
Guys husband buys medicine for wife. Turns out its poison. She gets sick but doesn’t die.
Medicine was labeled wrong then resold 4 times to reach husband.
Defendant, #2 in chain, claims no Privity of contract as a defense.
Court says: If #3 or #4 were negligent then they are a superceding cause.
If they are not negligent then #2 is liable because court says if you put human life in danger you do not
require Privity of contract. This is another exception to Privity of contract rule.
You have a duty, with or without Privity of contract, not to put human life in danger.
Distinction between Winterbottom and This case is that in this case mislabeling a poison is eminently likely
to result in harm. The probable consequence. In Winterbottom its more remote.
• Defendant has a duty, apart from any contract, not to put human life in danger. Therefore, if the
defendants negligence is such that it puts human life in imminent danger, the defendant will be
liable to the plaintiff for the harm caused regardless of whether they are in privity of contract.
Intervening Rule: Page 725 Case: Justice Cardozo.
Wheel on car breaks and crumbles. No privity and not dangerous to humans per se, not a public duty or
nuisance, but the court changes directions here.
• Loop v. Litchfield: Defective balance wheel in circular saw:
1. Because the defendant told the immediate purchaser about the defect and that immediate
purchaser didn’t warn the 3rd part it was sold to, defendant is not liable. The second guy
• Losee v. Clute: Explosion of steam boiler:
1. Boiler made to purchasers specification with the knowledge that the purchaser would
inspect it…so defendant is not liable.
• Devlin v. Smith: Improperly constructed scaffolding:
1. Defendant liable because he built a scaffolding knowing it would be used not only by
purchaser/owner but also by workman and it would be dangerous if improperly
• Statler v. Ray Manufacturing: Coffee Urn exploded when turned on.
1. Inherently dangerous if because of its character in its proper use it can become dangerous
if not carefully constructed.
Essentially in this opinion, Cardozo says the exceptions are to great, its time for a new rule. The new rule
• If the nature of the thing is of such a nature that when negligently made it will cause danger,
and the manufacturer has knowledge that the thing will be used by someone other than the
immediate purchaser, then the manufacturer has a duty to make it carefully regardless of the
1. Knowledge: Danger must be probable, not just possible.
2. Danger: Sometimes a question for the court and sometimes a question for the jury.
• Significance of this Case: Allowed general negligence causes of action in product liability cases.
However, Privity of contract actions are still available.
Intervening Rule: Page 729 Case: Justice Traynor Concurring Opinion.
Waitress bring claims of negligence when a coke bottle blows up in her hand and cuts her.
Witnesses testify that she did nothing wrong. She uses Res Ipsa Loquitor.
She has no means to show process or how bottle or pop is manufactured…plus bottle exploded.
Justice Traynor’s Concurring Opinion:
• We use all these fictions to apply liability to the manufacturer. Res Ipsa, Assignment of Duty,
• The better rule would be simply Strict Liability.
• Spares innocent victim.
• Manufacturer and distributor can disperse costs to consumers.
• Incentive for manufacturers to use due care not to put defective products into commerce.
In products liability cases where the alleged basis of liability is negligence, Res Ipsa Loquitor is available to
the plaintiff where negligence cannot be proven.
Warranty Claims Case Page 736:
Guys buys car for wife. Wife is injured when steering goes out. Hits wall totaling car.
Issue is contract signed by husband has tiny print saying no warranty.
Wife and guy sue for breach of implied and express warranty, negligence.
Court dismisses negligence.
Express Warranty: Express statement the product will do what it says it will do. (Shatter proof glass).
Implied Warranty: Product will be fit for the intended use. (Drive a car normal without issue).
Question is Privity of Contract for Warranty Claims: Given that she is a tird party can she sue under
general implied warranty provisions of contract?
Yes. Why? She is a foreseeable plaintiff in that she is foreseeable to use the car.
Court makes this change due to change in economic conditions: Media, Advertising, Manufacturers
stepping back from direct sales and using the dealership intermediaries.
Rule: One does not have to be in privity of contract to recover for breach of an implied warranty of
merchantability. Shift here is from contract/fault view to cheapest cost avoider/equitable distribution
Warranty provision on the car: Court didn’t agree with it. Court said even though one is required to read
contract, today’s sales contract are of unequal bargaining power. Standardized forms with no option to
negotiate and all dealers use same forms so market forces prevent any better options.
Court rules: Manufacturers cannot limit liability with respect to an implied warranty in the normal
course of selling to the average consumer. No self limiting contract provisions to liability.
ADVENT OF STRICT LIABILITY:
o Page 66 Supplement Case: Justice Traynor: Welcome to History…Changes Law To Strict Liability.
Plaintiff is guy who got Multifunction Lathe Machine for Christmas from wife.
Using it a couple years later with new attachment for lathe. Wood flies out and hits him.
Evidence showed defective design and inadequate set screws. Vibration caused loosening.
He sues: retailer and manufacturer: Breach of implied and express warranty and negligence.
• Retailer gets off. He did nothing to it. He did not offer the warranties.
• Manufacturer: Plaintiff won $65k for breach of warranty.
Both plaintiff and manufacturer appeal.
Defendant argues claim was not brought in a timely manner. Traynor says dosent matter as this is strict
liability. Traynor says the new rule is:
A manufacturer is strictly liable when:
• Places an item on the market;
• Knowing it will be used without inspection;
• The article proves to be defective;
• Causes injury to a human being.
Policy for the new rule:
Plaintiff must show his injury was a direct result of use of product, product was used in the way it was
intended to be used and plaintiff was unaware of the defect.
o Theories available for product liability:
Negligence: Why? Punitive damages available.
Breach of Contract: Why? Longer Statute of Limitations.
Breach of Warranty: Why? Longer Statute of Limitations.
Strict Liability: Why? Easiest.
Justifications for Strict Liability in Products Context:
Fairness: If you put a product out and benefit from it you should pay for losses incurred from it as
compared to an innocent victim.
Variation on Fairness: Nonreciprocal Risk. Some risky activity has social use so only want it being done if
necessary so places burden on manufacturer as consumer cannot affect that production standard.
Deterrence: Imposing the cost of accidents on the manufacturer will force the production of safer products.
Cheapest Cost Avoider: Person in best position to avoid costs cheaply should bear the cost of liability.
Loss Spreading: Spread loss over all consumers vs. single victim.
Consumer Expectations: Manufacturers implicitly represent that products are safe and healthy and
consumers are justified in relying on that representation.
Practicality/Efficiency: Cheaper to society and court system to sue manufacturer directly and saves time
and expense of proving negligence.
Ogle Case Page 71 Supplement:
Guy fell off Caterpillar Scraper. Suing for negligence and breach of warranty and thirdly strict liability.
Strict liability had not been yet adopted in Wyoming. Court decide first if Strict Liability is a claim.
Court said yes. Agree with majority of jurisdictions that it is time to implement strict liability.
Court thought fairness and loss spreading theories for policy justification.
Court adopts Section 402A of the restatement of torts.
Defendant argues element four below. Says it had been materially altered.
Court says this is a question for the jury but it was not given to the jury. Remand! Up to defendant to show
alteration was material and was the cause of the injury, not the original defect.
- Elements: STRICT LIABILITY CLAIM:
Seller engaged in business of selling product that caused harm; #1
Product was defective when sold; #2
Product unreasonably dangerous to user or consumer; #3
Product was intended to and did reach the consumer without substantial change in condition; #4
Product caused physical harm to the plaintiff; #5.
- 402B Misrepresentation:
One engaged in the business of selling chattels who misrepresents to the public a material fact concerning the
character or quality of a chattel, is subject to liability for physical harm caused by justifiable reliance upon the
- One Who Sells: #1 Elements:
o Generally one can sue anyone in the supply/marketing chain:
o Rational for allowing suit against actors in the chain of commerce:
Are engaged in distributing goods to the public.
Integral part of the enterprise.
May be only entity reasonably available to the public.
May play a substantial part in insuring safety of product.
o Sellers of used goods are generally NOT subject to strict liability when:
Defects were not created by that seller.
Products sold in essentially the same condition as when it was acquired for resale.
o Restatement approach to seller of used products: Allows suite when:
Marketing of the used product would cause a reasonable person to think there is no greater risk than if the
product were new.
Defect due to remanufacture by the seller or its predecessor in the chain of commerce.
Harm arises from failure to comply with applicable safety statute or regulation.
One who sells or furnishes a product as part of the provision of a service is not generally considered to be
one “engaged in the business of selling” for the purposes of strict products liability.
1. Service incident to the sale.
2. Material alteration of the product.
• Knee replacement case:
1. Sue hospital and manufacturer:
2. Manufacturer drops out as bankrupt.
3. Suing hospital for defective product sold.
4. Why is hospital a seller? They make a profit off of the sale of the product.
5. Court says sale is incident to service of knee replacement.
- Defective Product When Sold: #2 of Elements: (Manufacture / Design / Warning Defects)
o Manufacturing Defect: One where the product departs from its intended design even though all possible care was
taken in the preparation and marketing of the product.
Ex. Ford Motor Co. Case Page 750. Car with defective wheel suspension.
Contributory Negligence/Comparative Fault in Products Liability Cases:
• OLD RULE: Contributory negligence did not bar recovery under strict liability theory.
• NEW RULE: Plaintiffs negligence may be compared with the liability of the defendant under a
strict liability theory.
Two ways of showing Manufacturing Defect:
• Direct Evidence.
• Circumstantial Evidence, Particularly via the Res Ipsa Loquitor Doctrine.
1. When using circumstantial evidence, the plaintiff must show that it is more probable than
not that the product was defective when it left the defendant’s control.
• Injury is the kind that normally occurs as a result of a product defect.
• Injury not solely the result of causes other than a product defect.
• Rest. Section 3.
Clarification: Res Ipsa in Negligence vs. Strict Liability:
• Negligence: Doctrine used to establish negligence of defendant: Breach and causation.
• Strict Liability: Doctrine used to show defendant placed a defective product on the market.
o Design Defect: Strict liability for a design defect is available when a plaintiff can show that an unreasonably
dangerous product design proximately caused or enhanced plaintiffs injuries in the course of a foreseeable use.
Consumer Expectation: Design defect exists if product fails to perform safely as an ordinary consumer
would expect when used as intended or in a reasonable manner.
• Consumers may have low expectations.
• Crappy reputation actually decreases liability.
Alternative Design Rule: (Balance Test) In light of the relevant design factors discussed, the benefits of
the challenged design are outweighed by the risks of danger in such a design.
• Factors to Consider:
1. Gravity of posed danger.
2. Likelihood of injury.
3. Feasibility of an alternative design.
4. Cost of an alternative design.
5. Adverse consequences of an alternative design.
• Burden of Proof:
1. Plaintiff must show, by a preponderance of the evidence, a prima facie case of injury
proximately caused by products design.
2. Burden then shift to defendant to prove product was not defective.
Design Defect: RESTATEMENT & Wyoming Rule: A product is defective in design when the foreseeable
risk of harm posed by the product could have been reduced or avoided by the use of a reasonable
alternative design, and the omission of the alternative design renders the product not reasonably safe.
Design defect- Foreseeablity Requirement: In order for liability for harm caused by a design defect to lie,
the risk of harm must be foreseeable.
• A product does not have to be designed to avoid or reduce unforeseeable risks of harm.
• Misuse and a plaintiff’s knowledge of inherent dangers are factors to consider, but do not
necessarily bar liability.
Design Defects-Proving a Reasonable Alternative Design:
• Elements: Factors:
1. Existence of an alternative design:
• Feasibility of an alternative design
• Cost of an alternative design
• In addition to being possible, an alternative design must be reasonable. These
factors help assess the reasonableness of an alternative design.
2. The alternative design would in reasonable probability have prevented or substantially
reduced the risk:
• Gravity of danger posed.
• Likelihood of injury.
3. Alternative Design doesn’t substantially impair the products utility:
• Adverse consequences of an alternative design.
• Design Defects Utility vs. Risk:
1. A products utility v. its risk should be assessed in the context of its intended use.
2. Product safe for its intended use is not defectively designed just because it may be unsafe
in other circumstances. (Lighter case argument)
3. A manufacturer’s intent that a product only be put to a certain use does not necessarily
shield it from harm, but is a factor that must be considered.
• Design Defects: Additional Points:
1. A party will generally try to define the intended use and or the particular risk in terms
most favorable to that party.
2. Likewise, a party will generally try to get the court to adopt the test for design defects
that is most favorable to that party.
Problem 1 Page 766:
• Boy decides to play driver and crashes car. Shift lock would have prevented risk of shifting
• Consumer Expectation? No.
1. Alterative design: Yes.
2. Prevent Risk: Yes/Arguable.
3. Impair Products Utility: No.
Problem 2 Page 766:
• Convertible top provides little protection. Issue of role bar.
• Consumer Expectation: Yes. Why? Expect less protection from a convertible.
• Alternative Design: Elements:
1. Alternative design: Maybe. It’s a convertible. Roll bar. Hidden roll bars. Nature
of the car. Modern day vs. old classic car.
2. Prevent risk: Yes. Hard top.
3. Impair product utility. Maybe. It’s a convertible.
Brown v. Superior Court: DES drug case. Moms take drug to prevent miscarriages, side effects in
• Are DES manufacturers strictly liable to children of DES.
• Market share liability: Court finds they cannot hold them strictly liable for defective design of
1. Consumer expectation requires patients to go after doctor for failure to warn.
• Plaintiffs contend liability under failure to warn.
• Court decides defendant was not liable, for public policy reasons such as effective and cost
considerations for the development of new drugs for the public, for failure to warn as defendant
neither knew nor should have known given the scientific knowledge base available at the time the
drug was produced.
• In other contexts it makes more sense for manufacturers to bear costs. However in drug cases the
need for new drugs weighs heavier. Ultimately we want to promote the research and development
of new drugs and thus will not impose strict liability.
• Why not consumer expectation theory: Because a doctor is a learned intermediary. A patients
expectations are whatever a doctor tells them. Cant hold manufacturers liable for a doctors failure
Unavoidably Unsafe Products: Products that conform to their design and do what the consumer expects
them to do, but even with all precautions may still be dangerous. (Cigarettes, Handguns)
• Whether strict liability for a design defect will be imposed for these products often depends on
their overall social utility v. general degree of risk.
• While a claim based on design defect may not be available, one based on an information defect
might. (Must inform doctor fully)
Special Cases of Drugs: When prescription drugs and medical devices have been supplied with
adequate warnings and approved by the FDA, manufacturers, sellers, etc, are generally exempt from
liability on the basis of strict liability theory;
• However, such manufactures will still be potentially liable under a negligence theory.
Information/Warning Defects: A product is defective because of inadequate instructions or warnings when the
foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or
warnings and the omission of the instructions or warnings renders the product not reasonably safe.
CLARIFICATION: Negligence v. Strict Liability:
• Negligence: Plaintiff must prove the defendant failed to warn of a particular risk that a reasonable
prudent defendant would have warned about. (Focus on defendants conduct).
• Strict Liability: Plaintiff must prove the defendant did not adequately warn of a particular risk that
was known or knowable. (Focuses on product).
Livingston case page 773.
• MSG allergic. Asked if soup had it. Told no so ordered it. Had MSG reaction.
• Elements of strict liability.
1. Defendant knew or should have known of a particular risk.
2. Defendant failed to adequately warn of that risk.
3. Failure to warn rendered the product unsafe to its user.
• Appeals court found defendant should have warned. In this case the risk was known or should
have been known by the plaintiff of the population’s risk of allergic reaction to MSG.
Consumer Expectations Doctrine: (Majority Rule) A harm causing ingredient of a food product
constitutes a defect (such that strict liability is applicable) if a reasonable consumer would not expect
the food to contain the ingredient.
Foreign/Natural Doctrine: (Minority Rule) If the injury producing substance is natural to the food served,
such that it can be expected due to the nature of the food, strict liability will not be available.
• If the injury producing substance is foreign to the food strict liability is available.
Types of Warnings:
Risk Warnings: Allows a person to know they need not risk a danger posed by a particular product.
• Allows the user/consumer to make an informed choice.
Use Warnings: Informs a person of the proper way to use a product in order to avoid or greatly reduce
• Jackson v. Coast Paint Company Case Page 777:
1. Guy painting inside rail car. Fumes ignite and explode. Sues for defective warning.
2. If strict liability it doesn’t matter what anybody knew…its only a matter of looking at the
warning on the product and whether an ordinary consumer would expect it.
3. Appeals court found the duty runs directly to the plaintiff as these products are not only
distributed to the employer but to all persons. Any individual may buy this paint.
4. Thus the duty to adequately warn is necessary on the label and the label was, as such,
• Operative Question is whether the lack of warning made the product unreasonably dangerous.
1. Subjective state of mind of the plaintiff or defendant doesn’t matter for the purposes of
establishing a prima facie case.
2. Plaintiff state of mind only matters for defenses. (Contributory Negligence).
• A product may not be defective if it fails to warn about obvious or known dangers:
1. Whether a danger is obvious or known is assessed in relation to the ultimate
user/consumer and on the basis of knowledge possessed by the general/ordinary
• Information in Warnings:
1. To be legally adequate warnings must be reasonably clear and of sufficient force and
intensity to convey the nature and extent of the risk.
2. Duty to warn may be abrogated by the presence of a learned intermediary.
• Post-Sale Warnings:
1. Manufacturers have a duty to give prompt warnings as soon as they become aware of a
latent defect which makes a product hazardous.
2. If there is no defect at the time of manufacture, there is no post sale duty to warn, recall
- Unreasonably Dangerous: #3 of Elements.
o A product is considered unreasonably dangerous when it is unsafe when put to a use that is reasonably foreseeable
considering the nature and function of the product.
- Material Alteration Doctrine: #4 of Elements: A manufacturer or seller will not be liable for injuries caused by
unforeseeable alterations in the product.
o Substantial factor test to causation. Was it the original defect or the alteration that caused injury.
o Foreseeable alterations mean liability still applies.
o Unforeseeable alterations eliminate liability only if it was the substantial factor in causing injury. (Altered that part).
o Although this defense essentially negates the 4th element of strict liability causes of actions, this is in fact an
affirmative defense. This is an affirmative defense because:
Burden of proof rests with defendant;
Can be a complete defense to not only a strict liability action but also to negligence or breach of warranty
o Alterations: MUST BE:
Product was altered.
Alteration was unforeseeable.
Alteration is material.
Alteration rather than the original defect is the cause of the alleged injury.
- Causation & Economic Harm: #5 of Elements:
o Economic Harm:
A claim for purely economic loss is not cognizable under strict liability theory:
• Physical injury and injury to other property is cognizable under strict liability theory.
• Recovery for purely economic loss generally must be had under UCC.
Purely economic loss is damage in the form of inadequate value, cost of repair and replacement of the
defective product or consequent loss of profits without any claim of personal injury or damage to other
• Most jurisdictions will allow recovery for economic harm when it accompanies physical injury to
a person or other property.
The proper test is whether the defective product was the “substantial factor” in bringing about the plaintiffs
This is the same cause-in-fact test used in the negligence, intentional tort, and other strict liability torts.
Like negligence, to the extent intervening acts are determined to be superceding causes they will prevent
the defendant from being held liable under a strict liability theory.
• In other words, they will negate the causation element.
• When an intervening act is reasonably foreseeable, or it is unforeseeable but causes the same type
of harm as that which made the product dangerous, the intervening act will probably not be
o Page 80 of supplement: Section 16: Increased Harm Due to Product Defect.
A) When a product defect enhances a plaintiffs harm beyond what would have resulted from other causes,
the products seller/manufacture may be held strictly liable for the increased harm.
B) If proof supports a determination the harm that would have resulted from other causes in the absence of
the product defect, the product sellers liability is limited to the increased harm attributable solely to the
C) If proof does not support a determination under section B) of the harm that would have resulted in the
absence of the product defect, the product seller is liable for all of the plaintiffs harm attributable to the
defect and other causes.
o OLD RULE: Assumption of risk was a complete bar to recovery. Contributory negligence was not a complete bar
or essentially not available as a defense.
o CURRENT RULE: (Comparative Fault):
Plaintiffs conduct that contributes to or causes the harm may be considered to either reduce or eliminate
(depending on jurisdiction) plaintiffs recovery.
Plaintiffs conduct can be considered and compared regardless of the rubric it may fall under.
Forms of Plaintiffs conduct:
• Traditional contributory negligence.
• Special forms of contributory negligence:
1. Ignoring safety precaution warnings.
2. Product misuse.
• In some cases the misuse may indicate that the product wasn’t actually
• Traditional Assumption of Risk:
1. Knowingly, voluntarily, and unreasonably subject self to a particular product risk.
• High risk apart from defect:
1. Engage in risky behavior independent of the product that combines with the product
defect to cause harm.
Failure to Discover:
A plaintiffs negligence premised solely on a failure to discover or guard against a defect is not generally a
It can be a defense when the defect is obvious or when failure to discover for other reasons constitutes a
breach of the duty of care. (Contributory negligence).
o False & Defamatory Statement:
o Unprivileged Publication:
o Fault Amounting at Least to Negligence:
o Harm: Special or Otherwise.
o NOTE: Generally a plaintiff must be alive to recover for defamation.
o Any communication to a 3rd person (other than plaintiff) is sufficient.
o The current rule is the single publication rule. Treats all editions of a book, newspaper, etc, at one publication.
o Repetition by a 3rd person gives rise to a cause of action against the original defamer if:
3rd person privileged to repeat it.
Repetition authorized or intended by original defamer.
Repetition was reasonably expected.
o Generally a 3rd person who repeats or republishes a defamatory statement is liable as if he/she were the original
- Libel vs. Slander:
o Publication of defamatory matter by written or printed words.
Showing of special harm NOT usually required.
o Slander: Everything else. Usually thought to be spoken words.
Special harm REQUIRED except when:
• Criminal offense.
• Loathsome disease.
• Matter incompatible with business, trade, etc.
• Serious sexual misconduct.
- Libel Per Se vs. Libel Per Quod:
o Per Se: Libel that is defamatory on its face.
When a statement is susceptible of several meanings and at least one is defamatory on its face it is
considered Per Se.
o Per Quod: Defamatory nature of statement not obvious on its face and must be shown through extrinsic evidence.
- Role of Judge and Jury:
o Court determines whether the words in question are reasonably capable of a particular interpretation:
To the extent there can be only one interpretation the JUDGE determines whether a statement is
defamatory as a matter of law.
When there is more than one possible interpretation it is a JURY question.
- Defamation: Multiple Defendants:
o In order to be actionable, the defamatory statement must refer to the particular plaintiff:
Defamatory statements directed at a class of persons generally are not actionable by a member of the class
• The class is sufficiently small;
• The circumstances are such, or there is evidence, that a particular plaintiff or plaintiffs has been
singled out of the group.
- Defamation – Special Damages
o Essentially those that are pecuniary in nature (i.e. loss of customers or business, loss of contracts, loss of
One does not need to show special damages for libel or for slander per as damages are Presumed.
Per se liable – clearly defamatory on its face. It not defamatory on its face then its per quod and will go to the jury to make
Lent v. Huntoon
o When he was planning to quit his job, they dismissed him and then he opened a competitive company.
o More likely to have a per quod in this situation.
o He has a criminal record and the company is allegedly claiming he stole from the company. Saying he is dishonest.
o Look at exceptions for slander: He has 2 / 4 for slander claim = presumed damages and that eliminates needs of
Impugn your ability to do business
o Special Damages – actual damages; pecuniary
Privilege - Employers/Employee may be some privilege for one employer to tell another employer →
protect employers communications with each other.
o Truth: If statements are true, it defeats the claim (false and defamatory statements). Absolute defense.
Absolute – applies regardless of Defendant’s motivations:
• Judicial and legislative proceedings
• Government officials
• Husband and wife
Qualified – applies only when Defendant acts for certain well-defined purposes
• Interest of self or others (including legitimate business interests)
• Report of a crime
• Report of public proceedings
• Fair comment on matters of public concern
o Loss of Privilege (Qualified Only)
Implied Malice – Know statement is false or recklessly disregard whether it is true.
Actual Malice – Spiteful or Wanton Conduct
• Also expressed as primary purpose of statement lies outside the scope of the privilege
• Tell more people than you need to. Privilege to tell another employee but you tell more people
than you need to and you can lose a privilege for that reason as well.
New York Times Co. v. Sullivan Case:
o Most famous defamation case.
o Ad taken in NY times and respondent felt as city commissioner that people would suspect him of doing the things
stated in article because of his role as a public official.
o Civil rights movement. Ad was purchase by the “Committee to Defend Martin Luther King and the Struggle for
Freedom in the South.” It is an ad from people who are fairly well respected, well-off, and respected.
o Gross inaccuracies in the ad. Changing the terms of the article, but not in a relevant way. There may be a few
factual differences but they are still following the same theme.
o Much of the context of defamation arose during the civil rights movement.
o What happened in the trial court here? Trial court said we think this is liable per se.
o 1st Amendment rights – Federal courts have diversity if arises under Federal Law. 14th Amendment – also because
“Due Process” claim. Bill of Rights really only applies to the Federal Government. Once you had 14th Amendment
passed they incorporated those amendments and applied them to state law. Due process protects certain liberties and
rights. Make them applicable to the states. Can’t talk about Constitutional rights of case without using the “hook” of
the 14th Amendment.
Free speech exists to allow people to petition the government, but are worried that if under state law, defamation is
allowed, then people are going to eviscerate that defense. So, people will not say anything at all and steer clear of
Say that it doesn’t matter that its true. It’s a lot of opinion.
o They discuss the malice rule. Up until this case used to be Δ had to prove truth, but saying actually ¶ must
prove that it is false.
Plaintiff must also prove malice.
o During civil rights era. Court here did not think this applied directly to the plaintiff. It didn’t mention him by name
Court didn’t find recklessness either. NY Times had no reason to believe the facts were not true.
If anything it was negligent.
Also: Must show malice by a clear and convincing evidence…higher burden than beyond a reasonable doubt.
- Public Figures: NY Times Standards:
o BURDEN OF PROVING TRUTH NO LONGER RESTS WITH THE DEFENDANT. RATHER, THE
PLAINTIFF MUST PROVE FALSITY.
o A PUBLIC FIGURE MAY ONLY RECOVER FOR DEFEMATION IF THE PLAINTIFF CAN SHOW “ACTUAL
Malice: statement made with knowledge that it is false or with reckless disregard for whether they are
• Negligence is not sufficient.
• Must be shown by clear and convincing evidence.
- Defamation Elements Modified for Public Figure:
False and Defamatory statement.
Known by defendant to be false or published in reckless disregard for falsity. (Malice)..
Referring to the Plaintiff.
- Private Figures & Public Concern:
o As long as liability isn’t imposed without fault, the states are free to set their own standards for defamation of
o If the standard set is less than the NY Times/Sullivan standard (malice) recovery of presumed damages is not
Wyoming Standard For Private Figures and Public Concerns.
• Wyo. Stat. 1-29-101; Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo 1976).
• Wyo. Stat. 1-29-103: Only allow actual damages.
- Private Figures/Private Concerns:
o States are still free to set own standards.
o Actual (presumed) and punitive damages are available without showing of “actual malice”.
- Defamation and Public Figures:
o When the alleged defamatory statement is so outrageous, ridiculous, etc. that it can’t be reasonably be believed, a
public figure does not have a cause of action for defamation. (Fallwell)
o The supreme Court then in turn says because you cant get a defamation claim to stand up you also lose on the
intentional infliction case because it would do the same thing as the defamation case. We wont let you back door it.
- Defamation: Public vs. Private Figures. (Spence)
o To be a public figure such that one receives less protection against defamation a person must at a minimum:
Be involved in the resolution of an important public question or by reason of the persons fame shape events
of concern to society.
Have been involved in the controversy prior to the defamatory statement.
Private figure/ Private figure/
Public figure/ (aka limited public
Public concern Private concern
Public concern figures)
Actual Malice Go with the rule States set own rules States set own
applicable to status but have to impose rules, don Õhave to
related to the malice for presumed or show malice
particular issue punitive damages
How to approach a defamation question:
1. Determine if the person is a private or public figure.
2. Apply the applicable elements:
a. False and defamatory statement.
b. Unprivileged publication.
c. Fault…the degree of fault required depends on where the plaintiff fits in the continuum.
d. Harm: Presumed, special, and/or punitive.
- Actual Malice: Application of Actual Malice Standard:
o Conduct must amount to more than negligence for it to be actionable when the “actual malice” standard applies.
Thus, what a reasonable person would do under the circumstances is irrelevant.
There must be evidence of actual intent or of serious doubt as to the truth of a publication/statement.
o A general failure to investigate the truth of a matter or to explore another’s reputation for truthfulness in and of itself
o Actual malice requires “serious doubts” about the validity of the claim/statement.
o Some speech is going to be protected whether erroneous or not. Purposeful Ignorance.
o Public concern speech likely falls into this category.
o Policy: If you can refute the claim/statement then this corrects the error. But we don’t want to restrict the question
in the first instance which would be self censorship.
o NOT be enough to meet the actual malice standard.
- Use of Quotations: Ways a misquote may be defamatory: Freud Case
Attributes an untrue factual assertion to the speaker.
Manner of expression, or the type of statement attributed to the speaker indicates a negative personal trait or an
attitude the speaker does not hold.
Even if your material alteration is still “correct” the material alteration used in quotes will make you liable. We do
not want to have a trial to determine if your material alteration is correct. We just don’t want you to do it period.
To recover for defamation based on an altered quotation the quoted person must establish:
That the author knowingly altered the statement.
The alteration resulted in a material change in meaning.
This is also known as THE MATERIAL ALTERATION DOCTRINE.
o One may be liable for defamation based on the expression of an opinion when that expression makes an express or
implied statement of an underlying fact(for which you have no proof) which is provably false.
In other words, when the opinion is based on defamatory facts.
If the opinion appears to be based on facts which could be verified then its defamation. (Cheated on taxes).
o Statements of pure opinion (i.e. ones where there is no express or implied statement of some fact) are not actionable
- Intrusive Invasion:
On the solitude or seclusion of another;
That would be highly offensive to a reasonable person.
o EVEN IF: Even if the elements appear to be met, one can only recover for intrusive invasion if one had a reasonable
expectation of solitude or seclusion.
Judge of Jury:
In the first instance, the question of whether an intrusion is objectively “offensive” enough to establish
liability is one for the court (judge). If there is no way then it is dismissed.
If the court finds that it is possible to construe an invasion as offensive, it becomes a question for the jury
of whether under the facts and circumstances of a particular situation that was the case.
Factors to consider here:
• Degree of intrusion; Context; Conduct; Circumstances surrounding intrusion;
• Intruders motives; Setting; Expectation of privacy.
o PETA Vegas Case.
- Misappropriation of Identity: (Name or Likeness):
Of ones name or likeness;
For another’s use or benefit.
o Consent for one use is not necessarily consent for all uses.
o Any benefit derived by a defendant may be enough, even if that benefit is indirect. Must pay for every benefit
Damages are presumed and may be nominal.
• Often measured as the loss resulting from the usurpation of the plaintiffs property right in the
exclusive use of his/her own image.
To the extent one can show, malice, fraud, etc, a plaintiff may also recover punitive damages.
o Appropriation vs. Publicity:
Appropriation: Protects one’s interest in personal privacy.
• This IS A Privacy Tort.
Publicity: Protects one’s property interest in the use of one’s name or likeness.
• Prevents others from capitalizing g on one’s name or diluting its value.
• Often protected under state statutes governing commercial competition/trademark laws.
• Publicity is NOT a Privacy Tort.
- Public Revelation of Private Facts:
• This tort requires publication to be disseminated to a wide audience.
Aspect of private life;
• As with intrusive invasion, a plaintiff must demonstrate a reasonable expectation of privacy with
respect to the facts (aspects of life) revealed.
1. The facts that one may expose those facts to others in the general public does not
necessarily mean that one no longer has an expectation of privacy.
• The right of privacy is a person one, therefore, one does not have a privacy claim based on the
invasion of another’s privacy (regardless of the relationship one might have with the other person).
Publication highly offensive to a reasonable person;
• Much like we saw with intrusive invasion, whether the “highly offensive” element is me is a fact
and circumstances inquiry based on a reasonable person standard.
Matter publicized not of legitimate public concern.
• Whether a private matter is of sufficient public concern is also a fact and circumstance inquiry
based in customs and conventions of the relevant community.
• The line to be drawn is between what constitutes information to which the public is entitled, and
what is prying for the sake of prying and sensationalizing.
- False Light:
Publicize a matter concerning another;
The publicity places another before the public in a false light;
• Doesn’t have to necessarily hurt your reputation or necessarily be false…just portrays you in a
The false light would be highly offensive to a reasonable person;
Defendant acted with knowledge or reckless disregard.
o Some states don’t recognize as this is close to defamation.
o False light will cover some publications that defamation does not.
False light requires more extensive publication.
False light requires “highly offensive” showing.
False light meant to protect an individuals concern about what others know or believe about him rather than
2. Learn the elements.
3. Understand when and how they apply.
4. Identify Triggers for spotting issues.
5. There are triggers for claims and defenses.
6. Identify where the claims overlap.
7. Identify where the defenses overlap.
8. Work through a practice exam.