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This Document Contains Chapters 7 to 8 Chapter 7 INTENTIONAL TORTS Intent [7-1] Misuse of Legal Procedure [7-3c] Harm to the Person [7-2] Harm to Property [7-4] Battery [7-2a] Real Property [7-4a] Assault [7-2b] Trespass False Imprisonment [7-2c] Nuisance Infliction of Emotional Distress [7-2d] Personal Property [7-4b] Harm to Right of Dignity [7-3] Trespass Defamation [7-3a] Conversion Elements of Defamation Harm to Economic Interests [7-5] Defenses to Defamation Interference with Contractual Relations [7-5a] Invasion of Privacy [7-3b] Disparagement [7-5b] Appropriation Fraudulent Misrepresentation [7-5c] Intrusion Defenses to Intentional Torts [7-6] Public Disclosure of Private Facts Consent [7-6a] False Light Privilege [7-6b] Defenses Cases in This Chapter Philip Morris USA v. Williams Ferrell v. Mikula. Frank B. Hall & Co., Inc. v. Buck White v. Samsung Electronics America, Inc. Chapter Outcomes After reading and studying this chapter, the student should be able to: •Identify and describe the torts that protect against intentional harm to personal rights. •Explain the application of the various privileges to defamation suits and how they are affected by whether the plaintiff is (1) a public figure, (2) a public official, or (3) a private person. •Describe and distinguish the four torts comprising invasion of privacy. •Identify and describe the torts that protect against harm to property. •Distinguish among interference with contractual relations, disparagement, and fraudulent misrepresentation. TEACHING NOTES In general, a tort is committed when: 1. a duty owed by one person to another 2. is breached and 3. proximately causes 4. injury or damage to the owner of a legally protected interest. The law of torts has three principle objectives: (1) to compensate persons who sustain harm or loss from another’s tortious conduct, (2) to place the cost of compensation on those parties who should bear it, and (3) to prevent future harm and losses. Compensatory damages compensate the plaintiff for his injury. Punitive damages punish or make an example of the wrongdoer, in cases where the defendant’s conduct was intentional and outrageous, showing malice or a fraudulent or evil motive. CASE 7-1 PHILIP MORRIS USA v. WILLIAMS Supreme Court of the United States, 2007 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 http://scholar.google.com/scholar_case?case=3002949669360902078&q=549+U.S.+346&hl=en&as_sdt=2,34 Breyer, J. This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent [plaintiff at trial], Williams’ widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so. The jury ultimately found that Philip Morris was negligent (as was Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue here, it awarded compensatory damages of about $821,000 (about $21,000 economic and $800,000 noneconomic) along with $79.5 million in punitive damages. The trial judge subsequently found the $79.5 million punitive damages award “excessive,” [citation], and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris’ arguments and restored the $79.5 million jury award. Subsequently, [the State Supreme Court rejected Philip Morris’ arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a “grossly excessive” punitive award]. * * * Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.” [Citation.] We granted certiorari limited to these two questions. * * * This Court has long made clear that “punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” [Citations.] At the same time, we have emphasized the need to avoid an arbitrary determination of an award’s amount. Unless a State insists upon proper standards that will cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice ... of the severity of the penalty that a State may impose,” [citation]; it may threaten “arbitrary punishments,” i.e., punishments that reflect not an “application of law” but “a decision maker’s caprice,” [citation]; and, where the amounts are sufficiently large, it may impose one State’s (or one jury’s) “policy choice,” say as to the conditions under which (or even whether) certain products can be sold, upon “neighboring States” with different public policies, [citation]. For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” [Citation] (requiring judicial review of the size of punitive awards); [citation] (review must be de novo); [citation] (excessiveness decision depends upon the reprehensibility of the defendant’s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases”); [citation] (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is “grossly excessive,” we need now only consider the Constitution’s procedural limitations. In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. * * * * * * [W]e can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. [Citation.] (“We have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award”). * * * * * * Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible—although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. * * * We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers. * * * The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the “reasonable relationship” equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims…” [Citation.] And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution “prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.” [Citation.] * * * As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris’ appeal. We remand this case so that the Oregon Supreme Court can apply the standard we have set forth. Because the application of this standard may lead to the need for a new trial, or a change in the level of the punitive damages award, we shall not consider whether the award is constitutionally “grossly excessive.” We vacate the Oregon Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Tort law is primarily common law. The Restatement of Torts provides an orderly presentation of this law. From 1934 to 1939, the American Law Institute (ALI) adopted and promulgated the first Restatement. Since then, the Restatement has served as a vital force in shaping the law of torts. Between 1965 and 1978, the institute adopted and promulgated a second edition of the Restatement of Torts, which revises and supersedes the first Restatement. This text will refer to the second Restatement simply as the Restatement. In 1996, the ALI approved the development of a new Restatement, called Restatement Third, Torts: Liability for Physical and Emotional Harm, which addresses the general or basic elements of the tort action for liability for accidental personal injury, property damage, and emotional harm but does not cover liability for economic loss. This work will replace comparable provisions in the Restatement Second, Torts. The final work will be published in two volumes. Volume 1 is now available and covers liability for negligence causing physical harm, duty, strict liability, factual cause, and scope of liability (traditionally called proximate cause). Volume 2 will cover affirmative duties, emotional harm, landowner liability, and liability of actors who retain independent contractors. Volume 2 was approved in 2011. Because this new Restatement applies to nonintentional torts, it will be covered extensively in the next chapter and it will be cited as the “Third Restatement.” A few of its provisions, however, do apply to intentional torts and will be included in this chapter. The Institute has begun work on the Restatement Third, Torts: Intentional Torts to Persons, which is the latest installment of the ALI’s ongoing revision of the Restatement Second of Torts. This new project will complete the major avenues of recovery for physical and emotional harm to persons. Portions of Chapter 1 were approved in 2015. The Restatement Third, Torts: Liability for Economic Harm will update coverage on torts that involve economic loss or pecuniary harm not resulting from physical harm or physical contact to a person or property. The project will update coverage of economic torts in Restatement Second, Torts and address some topics not cov-ered in prior Restatements. This project will cover fraud, breach of fiduciary duty, interference with contract, unjustifiable litigation, injurious falsehood, and interference with the right to possession of personal property. It also will address unintentional infliction of economic loss, including professional negligence, misrepresentation, negligent performance of services, and public nuisance. The ALI began this project in 2004, and after several years of inactivity, the project was resumed in 2010. Tentative Draft No. 1 (Chapter 1, Unintentional Infliction of Economic Loss, Sections 1-5) was approved in 2012; Tentative Draft No. 2 (Chapter 1, Unintentional Infliction of Economic Loss, Sections 6-8, and Chapter 2, Liability in Tort for Fraud, Sections 9-15) was approved in 2014. Chapter 3 has not yet been approved. State legislatures and, to a lesser extent, courts have actively assessed the need for tort reform. In general, tort reform has focused on limiting liability by restricting damages or narrowing claims. The majority of States have enacted at least one piece of legislation that falls into the broad category of tort reform, but these States have enacted different changes or different combinations of changes affecting specific aspects of tort law. Approaches to tort reform that have been taken at the State level include the following: 1. Laws that address specific types of claims; for example, limits on medical malpractice awards or on the liability of providers of alcohol. 2. Laws abolishing joint and several liability or limiting the application of this rule. Where joint and several liability is abolished, each one of the several defendants is liable only for his share of the plaintiff’s damages. 3. Laws adding defenses to certain types of tort actions. 4. Laws capping noneconomic damages—so-called pain and suffering awards. 5. Laws to abolish or limit punitive damages, or to raise the standard of proof beyond the preponderance of the evidence. 6. Laws aimed at attorneys’ fees; for example, laws that directly regulate contingent fees. 7-1 Intent As used in tort law, intent means that the defendant desired to bring about the actual consequences of his physical action or that he believes those consequences are substantially certain. The basic elements of intent are: 1.) it is a state of mind 2.) about consequences of an act (or omission of an act) and not about the act itself 3.) and it extend not only to having in the mind a purpose or desire to bring about given consequences, but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act. NOTE: See Figure 7-1 in the textbook. *** Chapter Outcome *** Identify and describe the torts that protect against intentional harm to personal rights. 7-2 Harm to the Person 7-2a Battery Consists of intentional infliction of harmful or offensive bodily contact. Such contact does not necessarily have to be with the person’s body; it may consist of touching the individual’s clothing or some object that is being held. 7-2b Assault Is essentially the intentional creation of a mental impression that an offensive or harmful bodily contact is about to occur. The intended victim must be aware of the imminent danger. 7-2c False Imprisonment Is the intentional interference with a person’s freedom of movement by unlawful confinement. The person must be aware of the confinement or harmed by it. Mere obstruction of someone’s freedom of movement is insufficient so long as there is a reasonable, alternative exit available. CASE 7-2 FERRELL v. MIKULA Court of Appeals of Georgia, 2008, reconsideration denied, 2008 295 Ga.App. 326, 672 S.E.2d http://scholar.google.com/scholar_case?case=12901711244406213270&hl=en&as_sdt=2&as_vis=1&oi=scholarr Barnes, C. J. Racquel Ferrell and the parents of Kristie Ferrell sued Ruby Tuesday, Inc. and its manager Christian Mikula for false imprisonment, intentional infliction of emotional distress, * * *. After extensive discovery, the defendants moved for summary judgment on all counts. In a one-page order stating only that no genuine issues as to any material fact existed, the trial court granted the motion, and the Ferrells’ appeal. For the reasons that follow, we affirm the trial court’s grant of summary judgment to the defendants on the Ferrells’ claim for intentional infliction of emotional distress * * * but the grant on the false imprisonment claim. * * * * * * [T]he evidence shows that on Friday night, August 6, 2006, 18-year-old Racquel Ferrell and 13-year-old Kristie Ferrell went to Ruby Tuesday. After they ate and paid their bill, the girls left the restaurant, got into their car, and drove out of the parking lot. As they began to enter the highway, Racquel noticed a black truck following her very closely with its headlights on high. She could not see well out of her rear-view mirror with the bright lights behind her, so she changed lanes, but the truck changed lanes with her and stayed close behind. She switched lanes again, and the truck did too. A marked police car by the side of the road pulled onto the highway between the girls’ car and the following truck and pulled the car over. After asking Racquel if she had any drugs or weapons, the officer pulled her out of the car, placed her in handcuffs, and put her in the back seat of his patrol car. Another officer removed Kristie from the car, placed her in handcuffs, and put her in the back of another patrol car. All of the police officers gathered to talk to the driver of the truck that had been following the Ferrells, who turned out to be a uniformed off-duty police officer working as a security guard for Ruby Tuesday. The officer who arrested Racquel returned to the patrol car where she was being held and told her if she had not paid her Ruby Tuesday bill she was going to jail. She protested, and the officer conferred again with the other officers, then returned to the car and said, “It was a mistake.” He explained that the manager at the restaurant had sent the off-duty officer after them because he said the girls had not paid their bill, but they did not fit the description of the two people who had walked out without paying. The officers removed the handcuffs from Racquel and Kristie and returned them to their car. After asking for Racquel’s driver’s license and obtaining information about both girls, the officer told them they were free to go. Mikula had been an assistant manager for about a month, and was the only manager at Ruby Tuesday that night. One of the servers, Robert, reported that his customers at Table 24 had a complaint, so Mikula talked to the couple and told them he would “take care of” the food item in question. The customers were a man and a woman in their late 20s to early 30s. Mikula left the table to discuss the matter with Robert, after which server Aaron told Mikula that the patrons at Table 24 had left without paying. Mikula looked at the table, confirmed they had not left any money for the bill, and went out the main entrance. He saw a car pulling out of the parking lot, and said to the off-duty officer, “Hey, I think they just left without paying.” The officer said, “Who, them?” Mikula said, “I think so,” and the officer got up and went to his vehicle. * * * Mikula knew the officer was going to follow the people in the car and would stop them, but did not ask the officer if he had seen who got into the car. He did not give the officer a description of the people at Table 24, and did not know the race, age, gender, or number of people in the car being followed. He did not know if there were people in any of the other cars in the parking lot. He did not ask any other people in the restaurant if they had seen the people at Table 24 leave the building, which had two exits. He did not know how long the people had been gone before Aaron told him they left, or whether another customer had picked up money from Table 24. He could have tried to obtain more information to determine whether the people in the car he pointed out were the people who had been sitting at Table 24, but did not do so. * * * In this case, the Ferrells were detained without a warrant, and thus have a claim for false imprisonment * * *. [Citation.] “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” [Citation.] “The only essential elements of the action being the detention and its unlawfulness, malice and the want of probable cause need not be shown.” [Citations.] The evidence in this case clearly establishes that the Ferrells were detained. “* * * under modern tort law an individual may be imprisoned when his movements are restrained in the open street, or in a traveling automobile.” [Citation.] Ruby Tuesday does not argue otherwise, but instead argues that the evidence established sufficient probable cause and the plaintiffs failed to establish that Mikula acted with malice. But malice is not an element of false imprisonment, * * *. Further, * * * the mere existence of probable cause standing alone has no real defensive bearing on the issue of liability [for false imprisonment]. [Citation.] * * * Arresting or procuring the arrest of a person without a warrant constitutes a tort, “unless he can justify under some of the exceptions in which arrest and imprisonment without a warrant are permitted by law, [citations].” Generally, one “who causes or directs the arrest of another by an officer without a warrant may be held liable for false imprisonment, in the absence of justification, and the burden of proving that such imprisonment lies within an exception rests upon the person... causing the imprisonment.” [Citations.] * * * Accordingly, as the Ferrells have established an unlawful detention, the next issue to consider is whether Mikula “caused” the arrest. Whether a party is potentially liable for false imprisonment by “directly or indirectly urg[ing] a law enforcement official to begin criminal proceedings” or is not liable because he “merely relates facts to an official who then makes an independent decision to arrest” is a factual question for the jury. [Citation.] The party need not expressly request an arrest, but may be liable if his conduct and acts “procured and directed the arrest.” [Citation.] * * * Here, Mikula told the officer that the car leaving the parking lot contained people who left without paying for their food, although he did not know or try to ascertain who was in the car. He also knew the officer was going to detain the people in the car and could have tried to stop him, but made no attempt to do so. Accordingly, the trial court erred in granting summary judgment to the defendants on the plaintiffs’ false imprisonment claim. * * * The Ferrells also contend that the trial court erred in granting summary judgment to the defendants on their claim for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. [Citation.] Further, [l]iability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” [Citation.] In this case, the action upon which the Ferrells base their emotional distress claim is being stopped by the police, placed in handcuffs, and held in a patrol car for a short period of time before being released. While this incident was unfortunate, the question raised by the evidence was whether the restaurant manager’s actions were negligent, not whether he acted maliciously or his conduct was extreme, atrocious, or utterly intolerable. Accordingly, the trial court did not err in granting the defendants’ motion for summary judgment on the Ferrells’ claim for intentional infliction of emotional distress. * * * Judgment affirmed in part and reversed in part. 7-2d Infliction of Emotional Distress One of the more recently recognized torts is that of intentional or reckless infliction of emotional distress. Recklessness is conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed. Consists of outrageous conduct that falls well beyond the bounds of decency and which causes the person to suffer severe mental and emotional harm. Many courts allow recovery even if no physical injury occurs. 7-3 Harm to Right of Dignity 7-3a Defamation Consists of either an oral or written false communication which causes injury to a person’s reputation. Elements of Defamation —The burden of proof is on the plaintiff to prove the falsity of the defamatory statement. The communication must be published, which means that it must be communicated to a third party. Oral communications are referred to as slander; written communications as libel. Truth is a complete defense to defamation. CASE 7-3 FRANK B. HALL & CO., INC. v. BUCK Court of Appeals of Texas, Fourteenth District, 1984 678 S.W.2d 612, cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985) http://scholar.google.com/scholar_case?q=678+S.W.2d+612&hl=en&as_sdt=2,34&case=17495651340574040653&scilh=0 Junell, J. [On June 1, 1976, Larry W. Buck, an established salesman in the insurance business, began working for Frank B. Hall & Co. In the course of the ensuing months, Buck brought several major accounts to Hall and produced substantial commission income for the firm. In October 1976, Mendel Kaliff, then president of Frank B. Hall & Co. of Texas, informed Buck that his salary and benefits were being reduced because of his failure to generate sufficient income for the firm. On March 31, 1977, Kaliff and Lester Eckert, Hall’s office manager, fired Buck. Buck was unable to procure subsequent employment with another insurance firm. He hired an investigator, Lloyd Barber, to discover the true reasons for his dismissal and for his inability to find other employment. Barber contacted Kaliff, Eckert, and Virginia Hilley, a Hall employee, and told them he was an investigator and was seeking information about Buck’s employment with the firm. Barber conducted tape-recorded interviews with the three in September and October of 1977. Kaliff accused Buck of being disruptive, untrustworthy, paranoid, hostile, untruthful, and of padding his expense account. Eckert referred to Buck as “a zero” and a “classical sociopath” who was ruthless, irrational, and disliked by other employees. Hilley stated that Buck could have been charged with theft for certain materials he brought with him from his former employer to Hall. Buck sued Hall for damages for defamation and was awarded over $1.9 million by a jury—$605,000 for actual damages and $1,300,000 for punitive damages. Hall then brought this appeal.] Any act wherein the defamatory matter is intentionally or negligently communicated to a third person is a publication. In the case of slander, the act is usually the speaking of the words. Restatement (Second) Torts §577 comment a (1977). There is ample support in the record to show that these individuals intentionally communicated disparaging remarks to a third person. The jury was instructed that “Publication means to communicate defamatory words to some third person in such a way that he understands the words to be defamatory. A statement is not published if it was authorized, invited or procured by Buck and if Buck knew in advance the contents of the invited communication.” In response to special issues, the jury found that the slanderous statements were made and published to Barber. Hall argues that Buck could and should have expected Hall’s employees to give their opinion of Buck when requested to do so. Hall is correct in stating that a plaintiff may not recover for a publication to which he has consented, or which he has authorized, procured or invited, [citation]; and it may be true that Buck could assume that Hall’s employees would give their opinion when asked they do so. However, there is nothing in the record to indicate that Buck knew Hall’s employees would defame him when Barber made the inquiries. The accusations made by Kaliff, Eckert and Hilley were not mere expressions of opinion but were false and derogatory statements of fact. * * * A defamer cannot escape liability by showing that, although he desired to defame the plaintiff, he did not desire to defame him to the person to whom he in fact intentionally published the defamatory communication. The publication is complete although the publisher is mistaken as to the identity of the person to whom the publication is made. Restatement (Second) of Torts §577 comment 1 (1977). Likewise, communication to an agent of the person defamed is a publication, unless the communication is invited by the person defamed or his agent. Restatement §577 comment e. We have already determined that the evidence is sufficient to show that Buck did not know what Kaliff, Eckert or Hilley would say and that he did not procure the defamatory statements to create a lawsuit. Thus, the fact that Barber may have been acting at Buck’s request is not fatal to Buck’s cause of action. There is absolutely no proof that Barber induced Kaliff, Eckert or Hilley to make any of the defamatory comments. * * * When an ambiguity exists, a fact issue is presented. The court, by submission of proper fact issues, should let the jury render its verdict on whether the statements were fairly susceptible to the construction placed thereon by the plaintiff. [Citation.] Here, the jury found (1) Eckert made a statement calculated to convey that Buck had been terminated because of serious misconduct; (2) the statement was slanderous or libelous; (3) the statement was made with malice; (4) the statement was published; and (5) damage directly resulted from the statement. The jury also found the statements were not substantially true. The jury thus determined that these statements, which were capable of a defamatory meaning, were understood as such by Burton. * * * We hold that the evidence supports the award of actual damages and the amount awarded is not manifestly unjust. Furthermore, in responding to the issue on exemplary damages, the jury was instructed that exemplary damages must be based on a finding that Hall “acted with ill will, bad intent, malice or gross disregard to the rights of Buck.” Although there is no fixed ratio between exemplary and actual damages, exemplary damages must be reasonably apportioned to the actual damages sustained. [Citation.] Because of the actual damages [$605,000] and the abundant evidence of malice, we hold that the award of punitive damages [$1,300,000] was not unreasonable. The judgment of the trial court is affirmed. *** Chapter Outcome *** Explain the application of the various privileges to defamation suits and how they are affected by whether the plaintiff is a (1) public figure, (2) public official, or (3) private person. Defenses to Defamation — A privilege is a legal defense to what would otherwise be defamation; it provides immunity from liability when the defamation furthers a societal interest of greater importance than the injury caused by it. Three kinds of privilege apply to defamation: Absolute privilege protects the defendant regardless of motive or intent. It has been confined to those few situations where public policy clearly favors complete freedom of speech and includes: (1) statements made by participants regarding a judicial proceeding; (2) statements made by members of Congress on the floor of Congress; (3) statements made by certain executive officers while performing their governmental duty; and (4) statements made between spouses when they are alone. Conditional privilege depends on the proper use of the privilege. A person has a conditional privilege to publish defamatory matter to protect his own legitimate interests. It also extends to cases where the publisher and the recipient have a common interest, as with letters of reference. It can be forfeited by improper use. Constitutional privilege arises from the First Amendment to the Constitution, which guarantees freedom of speech and freedom of the press. This extends to the right to comment about public officials or public figures so long as it is done without malice. A private individual bringing a defamation suit need not prove malice as negligence is sufficient. Congress has enacted legislation granting immunity to Internet service providers (ISPs) from liability for defamation when publishing information originating from a third party. *** Chapter Outcome *** Describe and distinguish the four torts comprising invasion of privacy. 7-3b Invasion of Privacy Consists of four separate torts: (a) appropriation of a person’s name or likeness; (b) unreasonable intrusion on the seclusion of another; (c) unreasonable public disclosure of private facts; and (d) unreasonable publicity that places another in false light in the public eye. Appropriation — of someone’s name or likeness for personal benefit is not permitted. Individuals have a right to exclusive use of their own name and identity for gain. Also called right of publicity. CASE 7-4 WHITE v. SAMSUNG ELECTRONICS AMERICA, INC. United States Court of Appeals, Ninth Circuit, 1992 971 F.2d 1395, cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993) http://scholar.google.com/scholar_case?case=15763501998860364615&q=971+F.2d+1395&hl=en&as_sdt=2,34 Goodwin, J. This case involves a promotional “fame and fortune” dispute. In running a particular advertisement without Vanna White’s permission, defendants Samsung Electronics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempted to capitalize on White’s fame to enhance their fortune. White sued, alleging infringement of various intellectual property rights, but the district court granted summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand. Plaintiff Vanna White is the hostess of “Wheel of Fortune,” one of the most popular game shows in television history. An estimated forty million people watch the program daily. Capitalizing on the fame which her participation in the show has bestowed on her, White markets her identity to various advertisers. The dispute in this case arose out of a series of advertisements prepared for Samsung by Deutsch. The series ran in at least half a dozen publications with widespread, and in some cases national, circulation. Each of the advertisements in the series followed the same theme. Each depicted a current item from popular culture and a Samsung electronic product. Each was set in the twenty-first century and conveyed the message that the Samsung product would still be in use by that time. By hypothesizing outrageous future outcomes for the cultural items, the ads created humorous effects. For example, one lampooned current popular notions of an unhealthy diet by depicting a raw steak with the caption: “Revealed to be health food, 2010 A.D.” Another depicted irreverent “news”-show host Morton Downey Jr. in front of an American flag with the caption: “Presidential candidate. 2008 A.D.” The advertisement which prompted the current dispute was for Samsung videocassette recorders (VCRs). The ad depicted a robot, dressed in a wig, gown, and jewelry which Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next to a game ‘board which is instantly recognizable as the Wheel of Fortune game show set, in a stance for which White is famous. The caption of the ad read: “Longest running game show. 2012 A.D.” Defendants referred to the ad as the “Vanna White” ad. Unlike the other celebrities used in the campaign, White neither consented to the ads nor was she paid. Following the circulation of the robot ad, White sued Samsung and Deutsch in federal district court under: * * * the California common law right of publicity; * * *. The district court granted summary judgment against White on each of her claims. White now appeals. * * * White * * * argues that the district court erred in granting summary judgment to defendants on White’s common law right of publicity claim. In Eastwood v. Superior Court, [citation], the California court of appeal stated that the common law right of publicity cause of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent, and (4) resulting injury.” [Citation.] The district court dismissed White’s claim for failure to satisfy Eastwood’s second prong, reasoning that defendants had not appropriated White’s “name or likeness” with their robot ad. We agree that the robot ad did not make use of White’s name or likeness. However, the common law right of publicity is not so confined. The Eastwood court did not hold that the right of publicity cause of action could be pleaded only by alleging an appropriation of name or likeness. Eastwood involved an unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the Eastwood court had no occasion to consider the extent beyond the use of name or likeness to which the right of publicity reaches. That court held only that the right of publicity cause of action “may be” pleaded by alleging, inter alia, appropriation of name or likeness, not that the action may be pleaded only in those terms. The “name or likeness” formulation referred to in Eastwood originated not as an element of the right of publicity cause of action, but as a description of the types of cases in which the cause of action had been recognized. The source of this formulation is Prosser, Privacy, 48 Cal.L.Rev. 383, 401–07 (1960), one of the earliest and most enduring articulations of the common law right of publicity cause of action. In looking at the case law to that point, Prosser recognized that right of publicity cases involved one of two basic factual scenarios: name appropriation, and picture or other likeness appropriation. [Citation.] Even though Prosser focused on appropriations of name or likeness in discussing the right of publicity, he noted that “[i]t is not impossible that there might be appropriation of the plaintiff’s identity, as by impersonation, without use of either his name or his likeness, and that this would be an invasion of his right of privacy.” [Citation.] At the time Prosser wrote, he noted however, that “[n]o such case appears to have arisen.” [Citation.] Since Prosser’s early formulation, the case law has borne out his insight that the right of publicity is not limited to the appropriation of name or likeness. In Motschenbacher v. R.J. Reynolds Tobacco Co., [citation], the defendant had used a photograph of the plaintiff’s race car in a television commercial. Although the plaintiff appeared driving the car in the photograph, his features were not visible. Even though the defendant had not appropriated the plaintiff’s name or likeness, this court held that plaintiff’s California right of publicity claim should reach the jury. In Midler, this court held that, even though the defendants had not used Midler’s name or likeness, Midler had stated a claim for violation of her California common law right of publicity because “the defendants * * * for their own profit in selling their product did appropriate part of her identity” by using a Midler sound-alike. [Citation.] In Carson v. Here’s Johnny Portable Toilets, Inc., [citation], the defendant had marketed portable toilets under the brand name “Here’s Johnny”—Johnny Carson’s signature “Tonight Show” introduction—without Carson’s permission. The district court had dismissed Carson’s Michigan common law right of publicity claim because the defendants had not used Carson’s “name or likeness.” [Citation.] In reversing the district court, the sixth circuit found “the district court’s conception of the right of publicity * * * too narrow” and held that the right was implicated because the defendant had appropriated Carson’s identity by using, inter alia, the phrase “Here’s Johnny.” [Citation.] These cases teach not only that the common law right of publicity reaches means of appropriation other than name or likeness, but that the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff’s identity. The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. It is noteworthy that the Midler and Carson defendants not only avoided using the plaintiff’s name or likeness, but they also avoided appropriating the celebrity’s voice, signature, and photograph. The photograph in Motschenbacher did include the plaintiff, but because the plaintiff was not visible the driver could have been an actor or dummy and the analysis in the case would have been the same. Although the defendants in these cases avoided the most obvious means of appropriating the plaintiffs’ identities, each of their actions directly implicated the commercial interests which the right of publicity is designed to protect. As the Carson court explained, [t]he right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. * * * If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used. [Citation.] It is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so. Motschenbacher, Midler, and Carson teach the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity. A rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth. Indeed, if we treated the means of appropriation as dispositive in our analysis of the right of publicity, we would not only weaken the right but effectively eviscerate it. The right would fail to protect those plaintiffs most in need of its protection. Advertisers use celebrities to promote their products. The more popular the celebrity, the greater the number of people who recognize her, and the greater the visibility for the product. The identities of the most popular celebrities are not only the most attractive for advertisers, but also the easiest to evoke without resorting to obvious means such as name, likeness, or voice. Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing “Bulls” or “Jordan” lettering). The ad depicts the robot dunking a basketball one-handed, stiffarmed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during professional basketball games. Considered individually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion that any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jordan. Viewed separately, the individual aspects of the advertisement in the present case say little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict. The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White dresses exactly like this at times, but so do many other women. The robot is in the process of turning a block letter on a game-board. Vanna White dresses like this while turning letters on a game-board but perhaps similarly attired Scrabble-playing women do this as well. The robot is standing on what looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants themselves referred to their ad as the “Vanna White” ad. We are not surprised. Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. We decline Samsung and Deutsch’s invitation to permit the evisceration of the common law right of publicity through means as facile as those in this case. Because White has alleged facts showing that Samsung and Deutsch had appropriated her identity, the district court erred by rejecting, on summary judgment, White’s common law right of publicity claim. Intrusion — concerns the unreasonable and highly offensive interference with a person’s solitude or seclusion. It applies to places and events or occurrences where the individual has a heightened right of privacy on which the wrongdoer intrudes, such as unauthorized entry into home or eavesdropping on a private conversation. Information contained in public records is not covered. Public Disclosure of Private Facts — applies where private, though true, facts about another are publicized. Distinguish “publicized” from the “publication” required in defamation cases. “Publicized” means the private facts must be communicated to the public at large, whereas publication is communication to even a single third party. False Light — involves publicity that creates an untruthful public impression. There must be either knowledge of the untruthfulness or a reckless disregard of the truth. Again, publicity and not merely publication is required. Defenses — absolute, conditional, and constitutional privilege apply to the publication of any matter that is an invasion of privacy to the same extent as they do to defamation. 7-3c Misuse of Legal Procedure Comprised of three torts, each protects an individual from being subjected to unjustifiable litigation: Malicious Prosecution — bringing a criminal proceeding without probable cause, for an improper purpose, resulting in a finding of not guilty. Wrongful Civil Proceedings — like malicious prosecution, except in a civil suit. Abuse of Process — use of legal proceedings for purposes other than their intended purposes, even if there is probable cause. *** Chapter Outcome *** Identify and describe the torts that protect against harm to property. 7-4 Harm to Property 7-4a Real Property Real property is land and anything attached to it, such as buildings, trees, and minerals. The possessor of land has the right to its exclusive use and quiet enjoyment. Trespass — A person is liable for trespass to real property if he intentionally (1) enters or remains on land in the possession of another; (2) causes a thing or a third person to do so; or (3) fails to remove from the land a thing that he is under a duty to remove. Liability exists even though no actual damage occurs. Mistake is no defense. A trespass may be committed on, beneath, or above the surface of the land. Nuisance — A nontrespassory invasion of another’s interest in the use and private enjoyment of land. Nuisance does not require interference with another’s right to exclusive possession of land. It imposes liability for significant and unreasonable harm to another’s use or enjoyment of land such as by the emission of unpleasant odors, smoke, dust, gas, or pollutants. 7-4b Personal Property Personal property is any type of property other than an interest in land; protected interests include the retention of possession of the property, the physical condition and usability at the present time, and the property’s availability for use in the future. Trespass — Trespass to personal property consists of the intentional dispossession or unauthorized use of the personal property of another. For trespass, the owner recovers damages for the actual harm to the property or for loss of possession. Conversion — Conversion is the intentional exercise of dominion or control over another’s personal property that so seriously interferes with the other’s right of control as to justly require the payment of full value for the property. All conversions are trespasses, but not all trespasses are conversion. 7-5 Harm to Economic Interests Economic interests include a person’s existing and prospective contractual relations, business reputation, name and likeness, and freedom from deception. *** Chapter Outcome *** Distinguish among interference with contractual relations, disparagement, and fraudulent misrepresentation. 7-5a Interference With Contractual Relations An improper interference aimed at inducing a party to a contract not to perform. Liability requires that a person act with the purpose of interfering with another’s contract and with the knowledge that interference is substantially certain to occur as a result of her actions. 7-5b Disparagement Involves intentional or reckless publication of false facts which injure a person’s economic or monetary interests. Absolute, conditional, and constitutional privilege apply to the same extent to disparagement as they do to defamation. 7-5c Fraudulent Misrepresentation The intentional misrepresentation of a material fact; imposes liability for the monetary loss caused by a justifiable reliance on the misrepresentation. The Third Restatement of Torts: Liability for Economic Harm continues this general rule of liability for fraud. Section 9. A misrepresentation is fraudulent if the maker of it (1) knows or believes that the matter is not as he represents it to be, (2) knows that he does not have the confidence in the accuracy of his representation that he states or implies, or (3) knows that he does not have the basis for the representation that he states or implies. Third Restatement of Torts: Liability for Economic Harm, Section 10. NOTE: Fig. 7-3: Intentional Torts lists the interests protected by each tort. 7-6 Defenses to Intentional Torts 7-6a Consent A defendant is not liable if the plaintiff gave consent to the act, as long as the plaintiff had capacity to do so and the consent is not given under duress. Consent may be expressed by words or conduct. 7-6b Privilege Conduct of a defendant is privileged, and therefore immune from liability if it furthers a social interest such as in the case of self-defense, defense of property and defense of others. Chapter 8 NEGLIGENCE AND STRICT LIABILITY Negligence Breach of Duty of Care [8-1] Reasonable Person Standard [8-1a] Children Physical Disability Mental Deficiency Superior Skill or Knowledge Standard for Emergencies Violation of Statute Duty to Act [8-1b] Duties of Possessors of Land [8-1c] Second Restatement Third Restatement Res Ipsa Loquitur [8-1d] Factual Cause [8-2] Scope of Liability (Proximate Cause) [8-3] Foreseeability [8-3a] Superseding Cause [8-3b] Harm [8-4] Defenses to Negligence [8-5] Contributory Negligence [8-5a] Comparative Negligence [8-5b] Assumption of Risk [8-5c] Strict Liability Activities Giving Rise to Strict Liability [8-6] Abnormally Dangerous Activities [8-6a] Keeping of Animals [8-6b] Trespassing Animals Nontrespassing Animals Defenses to Strict Liability [8-7] Contributory Negligence [8-7a] Comparative Negligence [8-7b] Assumption of Risk [8-7c] Cases in This Chapter Soldano v. O’Daniels Love v. Hardee’s Food Systems, Inc. Palsgraf v. Long Island Railroad Co. Moore v. Kitsmiller Klein v. Pyrodyne Corporation Palumbo v. Nikirk Chapter Outcomes After reading and studying this chapter, the student should be able to: •List and describe the three required elements of an action for negligence. •Explain the duty of care that is imposed on (1) adults, (2) children, (3) persons with a physical disability, (4) persons with a mental deficiency, (5) persons with superior knowledge, and (6) persons acting in an emergency. •Differentiate among the duties that possessors of land owe to trespassers, licensees, and invitees. •Identify the defenses that are available to a tort action in negligence and those that are available to a tort action in strict liability. •Identify and describe those activities giving rise to a tort action in strict liability. TEACHING NOTES A tort is a civil wrong that causes injury to persons, property, or economic interests. The last chapter covered intentional torts. This chapter covers the rest of tort law: negligence and strict liability. Intentional torts are committed when people take an action desiring to injure someone or when they take an action that is substantially certain to cause injury. Negligence is conduct that creates an unreasonable risk of harm. Strict liability is not based on any fault of a person; but rather, on the nature of the activity. Tort law is primarily common law and varies from state to state. It is dynamic, and over the last 30 years the courts have gradually expanded liability. A counter-movement is now under way to restrict liability. Tort reform is the name for efforts to legislate changes in tort law, both at the state and federal levels. The main thrust is to limit the damages that juries can award to plaintiffs, particularly punitive damages, damages for medical malpractice, and pain and suffering awards. As mentioned in Chapter 7, the American Law Institute (ALI) has published the Restatement Third, Torts: Liability for Physical and Emotional Harm (the “Third Restatement”). This new Restatement addresses the general or basic elements of the tort action for liability for accidental personal injury, property damage, and emotional harm, but does not cover liability for economic loss. The ALI’s Restatement Third, Torts: Liability for Economic Harm will update coverage on torts that involve economic loss, which is pecuniary (financial) harm not arising from injury to a person or from physical harm to a person’s property. This project will update coverage of economic torts in Restatement Second, Torts and address some topics not covered in prior Restatements. This project will cover fraud, breach of fiduciary duty, interference with contract, unjustifiable litigation, injurious falsehood, and interference with the right to possession of personal property. It also will address unintentional infliction of economic loss, including professional negligence, misrepresentation, negligent performance of services, and public nuisance. The ALI began this project in 2004, and after several years of inactivity, the project was resumed in 2010. Tentative Draft No. 1 (Chapter 1, Unintentional Infliction of Economic Loss, Sections 1-5) was approved in 2012; Tentative Draft No. 2 (Chapter 1, Unintentional Infliction of Economic Loss, Sections 6-8, and Chapter 2, Liability in Tort for Fraud, Sections 9-15) was approved in 2014. Chapter 3 has not yet been approved. NEGLIGENCE A person acts negligently if the person does not exercise reasonable care under all the circumstances. Third Restatement, Section 3. Moreover, the general rule is that a person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property. Third Restatement, Section 7. On the other hand, a person is not under a general duty to avoid the unintentional infliction of economic loss. Restatement Third, Torts: Liability for Economic Harm, Section 1. A duty of care with respect to economic loss is recognized, however, in limited specific circumstances, the most important of which is an action to recover for economic loss caused by professional negligence, also known as malpractice. Restatement Third, Torts: Liability for Economic Harm, Sections 1 and 4. *** Chapter Outcome *** List and describe the three required elements of an action for negligence. A plaintiff alleging negligence has to prove five elements: 1. Duty of care: that a legal duty required the defendant to conform to the standard of conduct established for the protection of others; 2. Breach of duty: that the defendant failed to exercise reasonable care; 3. Factual cause: that the defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained; 4. Harm: that the harm sustained is of a type protected against negligent conduct; and 5. Scope of liability: that the harm sustained is within the “scope of liability,” which historically has been referred to as “proximate cause.” Third Restatement, Section 6, comments. 8-1 Breach Of Duty Of Care While the law does not obligate us to help each other (except in special circumstances) we are obligated to avoid doing harm or putting others at unreasonable risk of harm. Negligence is conduct that creates an unreasonable risk of harm. (1) the foreseeable probability that the person’s conduct will result in harm, (2) the foreseeable gravity or severity of any harm that may follow, and (3) the burden of taking precautions to eliminate or reduce the risk of harm. Third Restatement, Section 3.Thus, the standard of conduct, which is the basis for the law of negligence, is usually determined by a cost-benefit or risk-benefit analysis. 8-1a Reasonable Person Standard The degree of care expected of a reasonable person in similar circumstances. Age, physical disability, skill or knowledge, and emergencies may affect the level of conduct expected of a reasonable person. *** Chapter Outcome *** Explain the duty of care that is imposed upon 1) adults, 2) children, 3) persons with a physical disability, 4) persons with a mental deficiency, 5) persons with superior knowledge, and 6) persons acting in an emergency. Children — usually held to a standard of conduct based on their own age and experience, except when children engage in an adult activity like flying a plane or driving a boat. Some States modify this individualized test by holding that under a minimum age, most commonly the age of seven, a child is incapable of committing a negligent act. The Third Restatement further provides that a child less than five years of age is incapable of negligence. Physical Disability – A person who is ill or physically disabled must conform to the standard of conduct of a reasonable person under like disability. Mental Disability –A person’s mental or emotional disability is not considered in determining whether conduct is negligent unless the person is a child. The defendant is held to the standard of conduct of a reasonable person who is not mentally or emotionally disabled, even though the defendant is, in fact, incapable of conforming to the standard. When a person’s intoxication is voluntary, it is not considered as an excuse for conduct that is otherwise lacking in reasonable care. Superior Skill or Knowledge – A person who is qualified to practice a profession or trade that requires special skill and expertise is required to use the same care and skill normally possessed by members of that profession or trade. Standard for Emergencies – In sudden, unexpected events that call for immediate action, the standard is that of a reasonable person under the circumstances–the emergency is considered part of the circumstances. Violation of Statute – The reasonable person standard of conduct may be established by legislation or administrative regulation, with civil liability imposed on violators. NOTE: See Figure 8-1. 8-1b Duty to Act Except in special circumstances, a person who has not created risk of harm to others is ordinarily not required to aid another in peril. A person does have a duty to act if: • the relationship between the parties creates an obligation • one party has negligently placed the other in a position of potential harm • a person’s conduct, whether tortious or innocent, has injured someone else and left that person helpless and in danger of further harm Most States have enacted Good Samaritan statutes to encourage voluntary emergency care. These statutes typically limit or disallow liability for some rescuers under specified circumstances. But, a person who voluntarily helps someone in need is liable if her failure to exercise reasonable care increases the risk of harm, causes harm, or leaves the other in a worse position. There are special relationships (parent/child or employer/employee) in which one person has some degree of control over another person, and in these cases one may owe a duty of reasonable care such as controlling the activities of the other person or merely providing a warning. The Third Restatement leaves it to the courts whether to recognize additional relationships as sufficient to impose an affirmative duty. Furthermore, State and Federal statutes and administrative regulations as well as local ordinances may impose an affirmative duty to act for the protection of another. CASE 8-1 SOLDANO v. O’DANIELS California Court of Appeal, Fifth District, 1983 141 Cal.App.3d 443, 190 Cal.Rptr. 310 http://scholar.google.com/scholar_case?case=636498466656533477&q=190+Cal.Rptr.+310&hl=en&as_sdt=2,34 Andreen, J. Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good samaritan who explains an emergency situation occurring without and wishes to call the police? This appeal follows a judgment of dismissal of the second cause of action of a complaint for wrongful death upon a motion for summary judgment. The motion was supported only by a declaration of defense counsel. Both briefs on appeal adopt the defense averments: This action arises out of a shooting death occurring on August 9, 1977. Plaintiff’s father [Darrell Soldano] was shot and killed by one Rudolph Villanueva on that date at defendant’s Happy Jack’s Saloon. This defendant owns and operates the Circle Inn which is an eating establishment located across the street from Happy Jack’s. Plaintiff’s second cause of action against this defendant is one for negligence. Plaintiff alleges that on the date of the shooting, a patron of Happy Jack’s Saloon came into the Circle Inn and informed a Circle Inn employee that a man had been threatened at Happy Jack’s. He requested the employee either call the police or allow him to use the Circle Inn phone to call the police. That employee allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call. Plaintiff alleges that the actions of the Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent. We were advised at oral argument that the employee was the defendant’s bartender. The state of the record is unsatisfactory in that it does not disclose the physical location of the telephone—whether on the bar, in a private office behind a closed door or elsewhere. The only factual matter before the trial court was a verified statement of the defense attorney which set forth those facts quoted above. Following normal rules applicable to motions for summary judgment, we strictly construe the defense affidavit. [Citation.] Accordingly, we assume the telephone was not in a private office but in a position where it could be used by a patron without inconvenience to the defendant or his guests. We also assume the call was a local one and would not result in expense to defendant. There is a distinction, well rooted in the common law, between action and nonaction. [Citation.] It has found its way into the prestigious Restatement Second of Torts (hereafter cited as “Restatement”), which provides in section 314: The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action. As noted in [citation], the courts have increased the instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. * * * * * * Section 314A of the Restatement lists other special relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance. [Citation.] Here there was no special relationship between the defendant and the deceased. It would be stretching the concept beyond recognition to assert there was a relationship between the defendant and the patron from Happy Jack’s Saloon who wished to summon aid. But this does not end the matter. It is time to re-examine the common law rule of nonliability for nonfeasance in the special circumstances of the instant case. * * * We turn now to the concept of duty in a tort case. The [California] Supreme Court has identified certain factors to be considered in determining whether a duty is owed to third persons. These factors include: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citation.] We examine those factors in reference to this case. (1) The harm to the decedent was abundantly foreseeable; it was imminent. The employee was expressly told that a man had been threatened. The employee was a bartender. As such he knew it is foreseeable that some people who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of decedent’s injury is undisputed. (3) There is arguably a close connection between the employee’s conduct and the injury: the patron wanted to use the phone to summon the police to intervene. The employee’s refusal to allow the use of the phone prevented this anticipated intervention. If permitted to go to trial, the plaintiff may be able to show that the probable response time of the police would have been shorter than the time between the prohibited telephone call and the fatal shot. (4) The employee’s conduct displayed a disregard for human life that can be characterized as morally wrong: he was callously indifferent to the possibility that Darrell Soldano would die as the result of his refusal to allow a person to use the telephone. Under the circumstances before us the bartender’s burden was minimal and exposed him to no risk: all he had to do was allow the use of the telephone. It would have cost him or his employer nothing. It could have saved a life. (5) Finding a duty in these circumstances would promote a policy of preventing future harm. A citizen would not be required to summon the police but would be required, in circumstances such as those before us, not to impede another who has chosen to summon aid. (6) We have no information on the question of the availability, cost, and prevalence of insurance for the risk, but note that the liability which is sought to be imposed here is that of employee negligence, which is covered by many insurance policies. (7) The extent of the burden on the defendant was minimal, as noted. * * * We acknowledge that defendant contracted for the use of his telephone, and its use is a species of property. But if it exists in a public place as defined above, there is no privacy or ownership interest in it such that the owner should be permitted to interfere with a good faith attempt to use it by a third person to come to the aid of another. * * * We conclude that the bartender owed a duty to the plaintiff’s decedent to permit the patron from Happy Jack’s to place a call to the police or to place the call himself. It bears emphasizing that the duty in this case does not require that one must go to the aid of another. That is not the issue here. The employee was not the good samaritan intent on aiding another. The patron was. * * * We conclude there are sufficient justiciable issues to permit the case to go to trial and therefore reverse. 8-1c Duties of Possessors of Land People who occupy land with the intent to control its use have a right to use it for their own benefit and enjoyment, but in a reasonable manner. They cannot cause unreasonable risk of harm to others either on or off the site, though the possessor’s level of responsibility to a person on site usually depends on whether the person is a trespasser, a licensee, or an invitee. In about fifteen States, however, licensees and invitees are owed the same duty. In addition, at least nine States have abandoned these distinctions and simply apply ordinary negligence principles of foreseeable risk and reasonable care to all entrants on the land including trespassers. The Third Restatement has adopted this last—the unitary—approach. *** Chapter Outcome *** Differentiate among the duties that possessors of land owe to trespassers, licensees, and invitees. Second Restatement In accordance with the historical—and still majority—approach to the duties of possessors of land, the Second Restatement provides for varying duties depending on the status of the entrant on the land. •A trespasser enters or remains on the land of another without permission. The lawful possessor of the land is not liable for failure to maintain safe conditions, but may not inflict intentional injury on a trespasser. •A licensee is privileged to enter or remain on land only by the consent of the lawful possessor; includes members of the household, social guests, and salespersons calling at private homes. The possessor must warn the licensee of any known dangerous activities and conditions which the licensee is unlikely to discover. •An invitee is a person invited upon land as a member of the public or for a business purpose. A public invitee visits the land as a member of the public for a purpose for which the land is intended, as with a public park or a public government office. A business visitor is an invitee who enters the premises for a purpose connected with business with the possessor of the land, such as shopping in a store or entering a residence to make repairs. If the possessor should reasonably know of a hazard, he is under a duty to protect invitees from dangers they are unlikely to discover, whether the possessor is aware of the danger or not. Third Restatement The status-based duty rules just discussed have been rejected by the Third Restatement, which adopts a unitary duty of reasonable care to entrants on the land. [Except for “flagrant trespassers,”] a land possessor owes a duty of reasonable care to entrants on the land with regard to: •conduct by the land possessor that creates risks to entrants on the land; •artificial conditions on the land that pose risks to entrants on the land; •natural conditions on the land that pose risks to entrants on the land... The Third Restatement requires that a land possessor only (1) refrain from intentional, willful, or wanton conduct that harms a flagrant trespasser and (2) exercise reasonable care on behalf of flagrant trespassers who are imperiled and helpless. s CASE 8-2 LOVE v. HARDEE’S FOOD SYSTEMS, INC. Court of Appeals of Missouri, Eastern District, Division Two, 2000 16 S.W.3d 739 http://scholar.google.com/scholar_case?case=12304910341505965816&hl=en&as_sdt=2&as_= 1&oi=scholarr Crane, J. At about 3:15 P.M. on November 15, 1995, plaintiff, Jason Love, and his mother, Billye Ann Love, went to the Hardee’s Restaurant in Arnold, Missouri, which is owned by defendant, Hardee’s Food Systems, Inc. There were no other customers in the restaurant between 3:00 P.M. and 4:00 P.M., but two or three workmen were in the back doing construction. The workmen reported that they did not use the restroom and did not see anyone use the restroom. After eating his lunch, plaintiff, who was wearing rubber-soled boat shoes, went to use the restroom. He opened the restroom door, took one step in, and, upon taking his second step, slipped on water on the restroom floor. Plaintiff fell backwards, hit his head, and felt a shooting pain down his right leg. He found himself lying in an area of dirty water, which soaked his clothes. There were no barricades, warning cones, or anything else that would either restrict access to the bathroom or warn of the danger. Plaintiff crawled up to the sink to pull himself up and made his way back to the table and told his mother that his back and leg were “hurting pretty bad.” His mother reported the fall to another employee. Plaintiff’s mother went back to the men’s restroom and looked at the water on the floor. She observed that the water was dirty. The restaurant supervisor came out and interviewed plaintiff and viewed the water in the restroom. * * * The supervisor then filled out an accident report form, which reported that the accident occurred at 3:50 P.M. The supervisor testified that the water appeared to have come from someone shaking his hands after washing them. The supervisor told plaintiff he could not recall the last time the restroom had been checked. Plaintiff was taken to a hospital emergency room. As a result of his injuries, plaintiff underwent two back surgeries, missed substantial time from work, and suffered from continuing pain and limitations on his physical activities. Defendant had a policy requiring that the restroom was to be checked and cleaned every hour by a maintenance man. The maintenance man was scheduled to work until 3:00 P.M., but normally left at 1:00 P.M. The supervisor could not recall whether the maintenance man left at 1:00 P.M. or 3:00 P.M. on November 15. The time clock activity report would show when the maintenance man clocked out, but defendant was unable to produce the time clock report for November 15. It was also a store policy that whenever employees cleaned the tables, they would check the restroom. The restrooms were used by customers and employees. If an employee had to use the restroom, then that employee was also supposed to check the restroom. The restaurant supervisor did not ask if any employees had been in the restroom, or if they had checked it in the hour prior to the accident, and did not know if the restroom was actually inspected or cleaned at 3:00 P.M. The restaurant had shift inspection checklists on which the manager would report on the cleanliness of the restrooms and whether the floors were clean and dry. However, the checklists for November 15 were thrown away. * * * Plaintiff subsequently filed the underlying lawsuit against defendant to recover damages for negligence. The jury returned a verdict in plaintiff’s favor in the amount of $125,000. * * * * * * [Defendant] argues that plaintiff failed to make a submissible case of negligence because plaintiff failed to prove that defendant had actual or constructive notice of the water on the restroom floor in that there was no evidence showing the source of the water or the length of time the water had been on the floor. * * * In order to have made a submissible case, plaintiff had to show that defendant knew or, by using ordinary care, could have known of the dangerous condition and failed to use ordinary care to remove it, barricade it, or warn of it, and plaintiff sustained damage as a direct result of such failure. [Citation.] “In order to establish constructive notice, the condition must have existed for a sufficient length of time or the facts must be such that the defendant should have reasonably known of its presence.” [Citation.] [Prior] cases * * * placed great emphasis on the length of time the dangerous condition had been present and held that times of 20 or 30 minutes, absent proof of other circumstances, were insufficient to establish constructive notice as a matter of law. [Citations.] * * * Defendant’s liability is predicated on the foreseeability of the risk and the reasonableness of the care taken, which is a question of fact to be determined by the totality of the circumstances, including the nature of the restaurant’s business and the method of its operation. [Citations.] In this case the accident took place in the restaurant’s restroom which is provided for the use of employees and customers. The cause of the accident was water, which is provided in the restroom. The restaurant owner could reasonably foresee that anyone using the restroom, customers or employees, would use the tap water provided in the restroom and could spill, drop, or splash water on the floor. Accordingly, the restaurant owner was under a duty to use due care to guard against danger from water on the floor. There was substantial evidence to support submissibility. First, there was evidence from which the jury could infer that the water came from the use of the restroom. It was on the floor of the restroom and the supervisor testified it appeared that someone had shaken water from his hands on the floor. Next, there was evidence from which the jury could infer that, if the water was caused by a non-employee, the water was on the floor for at least 50 minutes, or longer, because there was evidence that no other customers were in the store to use the restroom after 3:00 P.M. and the workmen on the site advised that they had not used the restroom. In addition, plaintiff adduced evidence from which the jury could have found that defendants’ employees had the opportunity to observe the hazard. The restroom was to be used by the employees and was supposed to be checked by them when they used it; employees cleaning tables were supposed to check the restroom when they cleaned the tables; and a maintenance man was supposed to check and clean the restroom every hour. There was evidence from which the jury could have inferred that the maintenance man charged with cleaning the restroom every hour did not clean the restroom at 3:00 P.M. as scheduled on the day of the accident. There was testimony that the maintenance man usually left at 1:00 P.M. * * * This could have created a span of 2 hours and 50 minutes during which there was no employee working at the restaurant whose primary responsibility was to clean the restroom. [Citation.] There was also evidence from which the jury could have inferred that the restroom was not inspected by any employee who had the responsibility to inspect it during that same time period. The supervisor testified that he could not recall the last time the restroom had been checked and did not ask any employees if they had been in the restroom or had checked it in the hour before the accident. * * * * * * The judgment of the trial court is affirmed. 8-1d Res Ipsa Loquitur Meaning “the thing speaks for itself,” this rule applies “when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.” This rule permits the jury to infer both negligent conduct and causation from the mere occurrence of certain types of events. Other possible causes of the event must have been eliminated. 8-2 Factual CAUSE Liability for the negligent conduct requires not only that the conduct actually caused injury, but also that it was the cause of the injury. A widely applied test for causation in fact is the “but-for” test: A person’s conduct is a cause of an event if the event would not have occurred but-for (i.e., in the absence of) the person’s negligent conduct. When two or more forces are actively operating and each is sufficient to bring about the harm, the substantial factor test would be applied: negligent conduct is a legal cause of harm to another if the conduct is a substantial factor in bringing about the harm. This means that more than one defendant may be found liable for negligence in the same case. 8-3 Scope of Liability (Proximate Cause) The legal rule that limits a person’s liability to the consequences that are closely connected with the negligent conduct. This means that a person may have acted negligently and actually caused injury, but she will not be held liable for injuries that have been brought about too indirectly. 8-3a Forseeability The Restatement and a majority of the courts have taken the following position. Even if the defendant’s negligent conduct is a cause of harm to the plaintiff, the defendant is not liable to the plaintiff unless the defendant could have reasonably foreseen injuring the plaintiff or a class of persons of which the plaintiff is a member. CASE 8-3 PALSGRAF v. LONG ISLAND RAILROAD CO. Court of Appeals of New York, 1928 248 N.Y. 339, 162 N.E. 99 http://www.nycourts.gov/reporter/archives/palsgraf_lirr.htm Cardozo, C. J. Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do.” [Citations.] “Negligence is the absence of care, according to the circumstances.” [Citations.] * * * If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to someone else. “In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.” [Citations.] * * * A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to someone else. * * * One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform. * * * The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts. 8-3a Superseding Cause If an event occurs after the defendant’s negligent conduct and helps to cause the plaintiff’s injury, that event may be judged a superseding cause. A superseding cause prevents the defendant’s negligence from being the proximate (nearest) cause of an injury. Accordingly, a superseding cause relieves the defendant of liability for harm to the plaintiff. 8-4 Harm The plaintiff has the burden of proving that the defendant’s negligent conduct proximately caused the harm to a legally protected interest in a negligence case. The courts traditionally have been reluctant to allow recovery for negligently inflicted emotional distress, but this view is changing and most courts now hold a person liable for causing emotional distress if bodiy harm results from the distress, and some allow recovery even without bodily harm. The Third Restatement follows the minority approach: a person whose negligent conduct places another in immediate danger of bodily harm is subject to liability to the other for serious emotional disturbance caused by reaction to the danger even though the negligent conduct did not cause any impact or bodily harm to the other. 8-5 Defenses To Negligence Even if a plaintiff can prove all of the elements of a negligence action, he may still not recover damages if the defendant proves a valid defense. Generally, defenses to intentional torts can also be used in lawsuits alleging negligence. In addition, three special defenses may be available in negligence cases: contributory negligence, comparative negligence, and assumption of risk. *** Chapter Outcome *** Identify the defenses that are available to a tort action in negligence. 8-5a Contributory Negligence An act or failure to act on the part of the plaintiff that is also negligent and contributes toward the resulting injury. In other words, the plaintiff helped to harm himself. In the few states following this rule, it is a complete defense and prevents any recovery by the plaintiff. Exception: If the defendant had a last clear chance to avoid injuring the plaintiff but did not, the contributory negligence of the plaintiff does not bar his recovery of damages. 8-5b Comparative Negligence Has replaced contributory negligence in almost all states. Under this rule, damages are divided between the parties in proportion to the degree of fault or negligence found against them. In most states the plaintiff recovers proportionally unless her contributory negligence was “as great as” or “greater than” that of the defendant, in which case the plaintiff recovers nothing. The rule was adopted to mitigate the harsh results contributory negligence imposed on plaintiffs who were slightly negligent. 8-5c Assumption of Risk Applicable if a plaintiff understands a risk exists and voluntarily places himself in the zone of danger. In express assumption of the risk, the plaintiff expressly agrees to assume the risk of harm from the defendant’s conduct. Usually, but not always, such an agreement is by contract. In implied assumption of the risk the plaintiff voluntarily proceeds to encounter a known danger. The American Law Institute recently adopted The Third Restatement of Torts: Apportionment Liability, which has abandoned the doctrine of implied voluntary assumption of risk: it is no longer a defense that the plaintiff was aware of a risk and voluntarily confronted it. But if a plaintiff’s conduct in the face of a known risk is unreasonable it might constitutes contributory negligence. NOTE: See Figure 8-2: Defenses to a Negligence Action CASE 8-4 MOORE v. KITSMILLER Court of Appeals of Texas, Twelfth District, Tyler, 2006 201 S.W.3d 147, review denied http://scholar.google.com/scholar_case?q=201+S.W.3D+147&hl=en&as_sdt=2,34&case=5663712118613187322&scilh=0 Worthen, C. J. In the spring of 2001, Kitsmiller purchased a house in Van Zandt County to use as rental property. In mid-June, he hired B&H Shaw Company, Inc. (“B&H”) to install a replacement septic tank in the back yard. The septic tank was located about two or three feet from a concrete stoop at the back door of the garage. B&H mounded dirt over the septic tank and the lateral lines going out from it upon completion. Sometime after B&H installed the septic tank, Kitsmiller smoothed out the mounds of dirt over the septic tank and lateral lines using the box blade on his tractor. Kitsmiller then leased the property to Moore and his wife on July 27. Kitsmiller testified that he viewed the back yard about a week or ten days prior to leasing the property to the Moores and stated that the dirt around the septic system looked firm. On August 7, the Moores moved in. On August 11, Moore and his wife ventured into the back yard for the first time, carrying some trash bags to a barrel. Moore testified that his wife led the way and he followed her about a foot and a half behind. Moore testified that at the time, his right arm was in a sling and a bag of trash was in his left hand. He stated that as he stepped of the stoop, he was unable to see the ground and could only see his wife and the bag of trash in his left arm. His wife testified that the ground looked flat as she walked toward the barrel. Moore testified that he had only taken a few steps off the stoop when his left leg sank into a hole, causing him to fall forward into his wife. As he tried to steady himself with his right foot, it hung and then sank, causing him to fall backward on his head and back. Moore testified that the injury to his back required surgery and affected his ability to earn a living. Moore filed suit against Kitsmiller and B&H. He sought damages for past and future pain and suffering, past and future mental anguish, past and future physical impairment, and past and future loss of earning capacity. In their answers to Moore’s suit, both Kitsmiller and B&H pleaded the affirmative defense of contributory negligence. [Citation.] B&H specifically pleaded that Moore was negligent for not having kept a proper lookout when stepping into the back yard and looking for obstructions, such as erosion or soft soil. During the jury trial, Moore testified Kitsmiller should have notified him where the septic tank and lateral lines were located and that the dirt should have remained mounded over the tank and lines. On August 13, Moore asked Ken Martin to inspect the site of the fall (the “occurrence”). Martin is an on-site septic tank complaint investigator for both the Texas Commission on Environmental Quality and Van Zandt County. Martin testified that dirt should have been mounded over the septic tank and lateral lines, so that when the dirt settled, there would be no holes in the ground around the septic tank or lateral lines. However, there was no dirt mounded over the septic tank or lines when he inspected the site. Martin’s photographs of the site also indicated that there were no mounds of dirt over the septic tank. Further, the photographs showed sunken ground around the septic tank, including, but not limited to, the area where Moore fell. Martin testified that it was common for sinkholes to develop around a septic tank. He also testified that he had observed situations where dirt around a septic tank or lateral line looked to be solid, but sank when a person stepped on it. Martin testified that the photographs showed an obvious depression around the septic tank. Bill Shaw, president of B&H, testified that Moore should have been watching where he was going as he stepped into the back yard. Shaw stated that Martin’s photographs indicated to him that the depressions in the ground around the septic tank were visible at the time of the occurrence. The first question for the jury was whose negligence caused the occurrence. The jury responded that both Kitsmiller and Moore were negligent, but B&H was not. In the second question, the jury determined that Kitsmiller was 51% negligent and Moore was 49% negligent. In the third question, the jury determined that Moore was entitled to $210,000.00 in damages. On September 29, 2004, the trial court entered a judgment in favor of Moore and against Kitsmiller in the amount of $210,000.00 plus interest and costs. On October 14, 2004, Kitsmiller asked that the trial court modify the judgment to $107,100.00 based upon Moore’s contributory negligence. The trial court entered a modified final judgment on November 1, 2004 awarding Moore $107,100.00 plus interest and costs. On November 23, 2004, a partial satisfaction and release of judgment filed with the court showed that Kitsmiller had paid the amount awarded in the modified judgment to Moore. However, Moore reserved the right to appeal all issues involving his contributory negligence to this court. Moore then timely filed his notice of appeal. * * * * * * Moore contends the evidence is legally insufficient to support the judgment. Moore argues that his wife and Kitsmiller testified that the back yard was flat at the time of the occurrence. He contends that no one could have anticipated any danger from walking into the yard. Therefore, Moore argues that there is no evidence in the record to support the jury’s determination that he was contributorily negligent. Contributory negligence contemplates an injured person’s failure to use ordinary care regarding his or her own safety. [Citation.] This affirmative defense requires proof that the plaintiff was negligent and that the plaintiff’s negligence proximately caused his or her injuries. [Citation.] Negligence requires proof of proximate cause. [Citation.] Proximate cause requires proof of both cause in fact and foreseeability. [Citation.] The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about an injury without which the harm would not have occurred. [Citation.] Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. [Citation.] Because comparative responsibility involves measuring the party’s comparative fault in causing the plaintiff’s injuries, it necessitates a preliminary finding that the plaintiff was in fact contributorily negligent. [Citation.] The standards and tests for determining contributory negligence ordinarily are the same as those for determining negligence, and the rules of law applicable to the former are applicable to the latter. [Citation.] The burden of proof on the whole case is on the plaintiff. [Citation.] However, on special issues tendered by the defendant presenting an affirmative defense such as contributory negligence, the burden of proof is on the defendant to prove the defense by a preponderance of the evidence. [Citation.] When attacking the legal sufficiency of an adverse finding on an issue on which the party did not have the burden of proof, that party must demonstrate there is no evidence to support the adverse finding. [Citation.] To evaluate the legal sufficiency of the evidence to support a finding, we must determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair minded people to differ in their conclusions. [Citation.] We sustain a no evidence issue only if there is no more than a scintilla of evidence proving the elements of the claim. [Citation.] In making this determination, we must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. [Citation.] The trier of fact may draw reasonable and logical inferences from the evidence. [Citation.] It is within the province of the jury to draw one reasonable inference from the evidence although another inference could have been made. [Citation.] * * * Moore testified that when he stepped off the stoop into the back yard for the first time on August 11, 2001, he could only see his wife and the plastic bag of trash he was carrying in his left hand. The jury was allowed to draw an inference from this evidence that Moore was not watching where he was walking. An individual must keep a proper lookout where he is walking, and a jury is allowed to make a reasonable inference that failure to do so was the proximate cause of his injuries. [Citation.] It was reasonable for the jury to make an inference from Moore’s testimony that his failure to keep a proper lookout where he was walking contributed to the occurrence. Moore contends that the only reasonable inference the jury could have made was that, even if he had been watching where he was walking, he would not have been able to avoid stepping in the holes because they were not visible to the naked eye. The jury could have made that inference, but chose not to do so. Shaw’s testimony that Martin’s photographs showed the depressions could have been present at the time of the occurrence could have led the jury to believe that Moore’s contention was not a reasonable inference. We conclude that the jury made a reasonable inference from the evidence in finding Moore contributorily negligent. * * * * * * [T]he judgment of the trial court is affirmed. STRICT LIABILITY In some instances a person may be held liable for injuries he has caused even though he has not acted intentionally or negligently. Such liability is called strict liability, absolute liability, or liability without fault. The doctrine of strict liability is not based on fault of the defendant, but rather on the nature of the activity in which he is engaged. *** Chapter Outcome *** Identify and discuss those activities giving rise to a tort action in strict liability. 8-6 Activities Giving Rise to Strict Liability 8-6a Abnormally Dangerous Activities Involve a high degree of risk of serious harm that cannot be eliminated by the exercise of reasonable care and are not a matter of common usage. Activities judged abnormally dangerous include storing explosives or flammable liquids in large quantities; blasting or pile driving; crop dusting; drilling for or refining oil in populated areas; and emitting noxious gases or fumes into a settled community. CASE 8-5 KLEIN v. PYRODYNE CORPORATION Supreme Court of Washington, 1991 117 Wash.2d 1, 810 P.2d 917, as corrected 817 P.2d 1359 http://scholar.google.com/scholar_case?case=7983277736024137446&q=810+P.2d+917&hl=en&as_sclt=2,34 Guy, J. [Pyrodyne Corporation contracted to conduct the fireworks display at the Western Washington State Fairgrounds in Puyallup, Washington, on July 4, 1987. During the fireworks display, one of the five-inch mortars was knocked into a horizontal position. A shell inside ignited and discharged, flying five hundred feet parallel to the earth and exploding near the crowd of onlookers. Danny and Marion Klein were injured by the explosion. Mr. Klein suffered facial burns and serious injuries to his eyes. The parties provided conflicting explanations for the improper discharge, and because all the evidence had exploded, there was no means of proving the cause of the misfire. The Kleins brought suit against Pyrodyne under the theory of strict liability for participating in an abnormally dangerous activity.] Analysis Fireworks Displays as Abnormally Dangerous Activities The Kleins contend that strict liability is the appropriate standard to determine the culpability of Pyrodyne because Pyrodyne was participating in an abnormally dangerous activity. * * * The modern doctrine of strict liability for abnormally dangerous activities derives from Fletcher v. Rylands, [citation], in which the defendant’s reservoir flooded mine shafts on the plaintiff’s adjoining land. Rylands v. Fletcher has come to stand for the rule that “the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.” [Citation.] The basic principle of Rylands v. Fletcher has been accepted by the Restatement (Second) of Torts (1977). [Citation.] Section 519 of the Restatement provides that any party carrying on an “abnormally dangerous activity” is strictly liable for ensuing damages. The test for what constitutes such an activity is stated in section 520 of the Restatement. Both Restatement sections have been adopted by this court, and determination of whether an activity is an “abnormally dangerous activity” is a question of law. [Citations.] Section 520 of the Restatement lists six factors that are to be considered in determining whether an activity is “abnormally dangerous.” The factors are as follows: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts §520 (1977). As we previously recognized in [citation], the comments to section 520 explain how these factors should be evaluated: Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. Restatement (Second) of Torts §520, Comment f (1977). Examination of these factors persuades us that fireworks displays are abnormally dangerous activities justifying the imposition of strict liability. We find that the factors stated in clauses (a), (b), and (c) are all present in the case of fireworks displays. Any time a person ignites aerial shells or rockets with the intention of sending them aloft to explode in the presence of large crowds of people, a high risk of serious personal injury or property damage is created. That risk arises because of the possibility that a shell or rocket will malfunction or be misdirected. Furthermore, no matter how much care pyrotechnicians exercise, they cannot entirely eliminate the high risk inherent in setting off powerful explosives such as fireworks near crowds. * * * The factor expressed in clause (d) concerns the extent to which the activity is not a matter “of common usage.” The Restatement explains that “[a]n activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community.” Restatement (Second) of Torts §520, Comment i (1977). As examples of activities that are not matters of common usage, the Restatement comments offer driving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and drilling for oil. The deciding characteristic is that few persons engage in these activities. Likewise, relatively few persons conduct public fireworks displays. Therefore, presenting public fireworks displays is not a matter of common usage. * * * The factor stated in clause (e) requires analysis of the appropriateness of the activity to the place where it was carried on. In this case, the fireworks display was conducted at the Puyallup Fairgrounds. Although some locations—such as over water—may be safer, the Puyallup Fairgrounds is an appropriate place for a fireworks show because the audience can be seated at a reasonable distance from the display. Therefore, the clause (e) factor is not present in this case. The factor stated in clause (f) requires analysis of the extent to which the value of fireworks to the community outweighs its dangerous attributes. We do not find that this factor is present here. This country has a long-standing tradition of fireworks on the 4th of July. That tradition suggests that we as a society have decided that the value of fireworks on the day celebrating our national independence and unity outweighs the risks of injuries and damage. In sum, we find that setting off public fireworks displays satisfies four of the six conditions under the Restatement test; that is, it is an activity that is not “of common usage” and that presents an ineliminably high risk of serious bodily injury or property damage. We therefore hold that conducting public fireworks displays is an abnormally dangerous activity justifying the imposition of strict liability. * * * Conclusion We hold that Pyrodyne Corporation is strictly liable for all damages suffered as a result of the July 1987 fireworks display. Detonating fireworks displays constitutes an abnormally dangerous activity warranting strict liability * * *. This establishes the standard of strict liability for pyrotechnicians. Therefore, we affirm the decision of the trial court. 8-6b Keeping of Animals Strict liability for harm caused by animals existed at common law and continues today with some changes. As a general rule, people who possess animals do so at their peril and must protect against harm to other people and their property. Trespassing Animals — Owners and possessors of animals are subject to strict liability for physical harm done if their animals trespass. Three exceptions to this rule: 1) keepers of cats and dogs are liable only for negligence; 2) keepers of animals are not strictly liable for animals, such as sheep, straying from a highway on which they are being lawfully driven, although the owner may be liable for negligence if he fails to control them properly; and 3) in some western states keepers of farm animals, typically cattle, are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely. Nontrespassing Animals — Owners and possessors of wild animals are strictly liable for harm caused by such animals, whether or not they are trespassing. Wild animals are defined as those that are known to be likely to inflict serious damage and that cannot ever be considered safe; includes bears, lions, elephants, monkeys, tigers, deer, and raccoons. Keepers of domestic animals are liable if they know, or should have known, of the animal’s dangerous propensity, which is the cause of the harm. Examples of domestic animals include dogs, cats, horses, cattle, and sheep. CASE 8-6 PALUMBO v. NIKIRK Supreme Court, Appellate Division, Second Department, New York, 2009 59 A.D.3D 691, 874 N.Y.S.2D 222, 2009 N.Y. SLIP OP. 01454 http://scholar.google.com/scholar_case?case=7266290354304468850&q=2009+NY+Slip+Op+1454&hl=en&as_sdt=2,34 Per Curiam The plaintiff, a mail carrier, sustained injuries when he allegedly was bitten and attacked by a dog on the front steps of the defendants' house as he attempted to deliver the mail. The plaintiff, who crossed over the defendants' lawn and driveway from the house next door, and whose view of the dog was obstructed by a bush, did not see the dog or hear it bark until he opened the lid of the mailbox and was bitten. [The plaintiff brought an action to recover damages for personal injuries. The Supreme Court, Nassau County, granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiff appealed.] To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities [citations]. “Vicious propensities include the ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation’” [citations]. Here, the defendants established their prima facie entitlement to judgment as a matter of law by presenting evidence that the dog had never bitten, jumped, or growled at anyone prior to the incident in question, nor had the dog exhibited any other aggressive or vicious behavior [citations]. In opposition, the plaintiff failed to come forward with any proof in evidentiary form that the dog had ever previously bitten anyone or exhibited any vicious propensities. Furthermore, the presence of a “Beware of Dog” sign on the premises, the breed of the dog, and the owner’s testimony that the dog was always on a leash were insufficient to raise a triable issue of fact as to the dog’s vicious propensities in the absence of any evidence that prior to this incident the dog exhibited any fierce or hostile tendencies [citations]. [Summary judgment is affirmed.] *** Chapter Outcome *** Identify the defenses that are available in a tort action in strict liability. 8-7 Defenses To Strict Liability 8-7a Contributory Negligence Contributory negligence is not a defense. The strict liability for one who carries on an abnormally dangerous activity, keeps animals, or sells defective products that are unreasonably dangerous is not based on his negligence, so the ordinary contributory negligence of the plaintiff is not a defense. The full responsibility for preventing harm is on the defendant. 8-7b Comparative Negligence Comparative negligence is a defense in some states. Despite the rationale that disallows contributory negligence as a defense to strict liability, some states apply the doctrine of comparative negligence to strict liability, particularly products liability. 8-7c Assumption of Risk Under the Second Restatement of Torts voluntary assumption of risk is a defense to an action based upon strict liability. The more recent Third Restatement of Torts: Apportionment of Liability has abandoned the doctrine of implied voluntary assumption of risk in tort actions generally: it is no longer a defense that the plaintiff was aware of a risk and voluntarily confronted it. This new Restatement limits the defense of assumption of risk to express assumption of risk, which consists of a contract between the plaintiff and another person to absolve the other person from liability for future harm. Section 2. The Third Restatement: Liability for Physical and Emotional Harm recognizes a limitation on strict liability for abnormally dangerous activities and keeping of animals when the victim suffers harm as a result of exposure to the animal or activity resulting from the victim’s securing some benefit from that exposure. Section 24(a). Instructor Manual for Smith and Robersons Business Law Richard A. Mann, Barry S. Roberts 9781337094757, 9780357364000, 9780538473637

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