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Cpcu 530 chapter 6 torts cases
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Cpcu 530 chapter 6 torts cases

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  • 1. CPCU 530 Tort Law CasesScott v Shepard, 96 Eng. Rep. 525 (1773) case on remoteness and the principleofnovusactusinterveniens as it related to the division between trespass and case.On October28, 1770, Shepherd (defendant) threw a “lighted squib” (a parcel containing gun powder that was liton fire) into a marketplace. The squib landed near a stand where Yates was selling gingerbread. Willis,afraid of the damage it would cause to Yates’ goods, picked up the squib and threw it across the room.It landed near a stand owned by Ryal who was also selling goods. Ryal picked up the squib and threwit again across the market. In so doing, the squib struck Scott (plaintiff) in the face and exploded. Itput out one of Scott’s eyes. Scott brought suit against Shepherd for trespass and assault.28 U. S. C. §2671-2680 CRS Report for Congress, Federal Tort Claims , 12-11-2007.Retrieved 3-13-2013 athttp://www.hhs.gov/hhsmanuals/logisticsmanual/Appendix%20R_CRS%20Report%20to%20Congress,%20Federal%20Tort%20Claims%20Act,%20Order%20Code%2095-717.pdf,http://www.law.cornell.edu/uscode/text/28/2671Sullivan v New York Times, 376 U. S. 254 (1964) Respondent, an electedofficial in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by anadvertisement in corporate petitioners newspaper, the text of which appeared over the names of thefour individual petitioners and many others. The advertisement included statements, some of whichwere false, about police action allegedly directed against students who participated in a civil rightsdemonstration and against a leader of the civil rights movement; respondent claimed the statementsreferred to him because his duties included supervision of the police department. The trial judgeinstructed the jury that such statements were "libelous per se," legal injury being impliedwithout proof of actual damages, and that for the purpose of compensatory damages malicewas presumed, so that such damages could be awarded against petitioners if the statements werefound to have been published by them and to have related to respondent. As to punitive damages,the judge instructed that mere negligence was not evidence of actual malice and would notjustify an award of punitive damages; he refused to instruct that actual intent to harm orrecklessness had to be found before punitive damages could be awarded, or that a verdict forrespondent should differentiate between compensatory and punitive damages. The jury found forrespondent and the State Supreme Court affirmed. Held: A State cannot under the First andFourteenth Amendments award damages to a public official for defamatory falsehoodrelating to his official conduct unless he proves "actual malice" - that the statement wasmade with knowledge of its falsity or with reckless disregard of whether it was true orfalse. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=376&invol=254Rylands v Fletcher, 1 Eng. Rule Case 235 (1868): landmark19c English case,established the rule that a defendant is strictly liable when he damages another by an activityunusally dangerous and inappropriate in relation to the surroundings in which it is carried out.A reservoir constructed on Fletcher’s land broke through an abandoned mine shaft and flood the mindof Rylands.Henningsen v Bloomfield Motors Inc., 32 N. J. 358 (1960)PlaintiffsHenningsen sued Defendant Bloomfield Motors, Inc., for breach of an implied warranty ofmerchantability imposed by the Uniform Sales Act after Helen Henningsen was injured when thesteering mechanism of the car Plaintiffs purchased from Defendant malfunctioned. Defendant assertedthat the warranty had been disclaimed by the fine print on the back of the purchase contract. This isalso about font size with the disclaimer being 6 font vs 12 fonts on the front of the purchase Donna M Kesot, CPCU ©2013 Chapter 7& 8
  • 2. CPCU 530 Tort Law Casesagreement. A disclaimer or limitation of liability shall not be given effect if “unfairlyprocured,” that is, the consumer was not made understandingly aware of it or it was notclear and explicit.Rule: The general rule states that, in the absence of fraud, one cannot seek relief from the terms of acontract that he fails to read before signing it. However, due to the gross inequality in bargainingpositions occupied by an automobile dealer and a consumer, a disclaimer of liability will not beenforced if it is not brought to the purchaser’s attention or it is not clear and explicit. Here, Defendantdid not make Plaintiffs aware of the language on the back of the purchase contract, and Defendantnever addressed the language with Plaintiffs.UCC, § 2-314: Implied Warranty: Merchantability; Usage of Trade.(1) Unless excluded or modified (§ 2-316), a warranty that the goods shall be merchantable is impliedin a contract for their sale if the seller is a merchant with respect to goods of that kind. Under thissection the serving for value of food or drink to be consumed either on the premises or elsewhere is asale.(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promise or affirmations of fact made on the container or label if any.(3) Unless excluded or modified (§ 2-316) other implied warranties may arise from course of dealingor usage of trade. Donna M Kesot, CPCU ©2013 Chapter 7& 8

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