Torts - Outline - Professor Gard - Spring 2010

Fall
08
Spring
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Torts
John Gambill
Professor Gard
[Cleveland-Marshall College of Law]

Torts – Spring 2010 – Professor Gard
Fall
08
Table of Contents
TABLE OF CONTENTS..............................................................................2
OWNERS AND OCCUPIERS LIABILITY........................................................4
DUTIES OWED TO PERSONS OFF THE PREMISES.........................................................................4
Natural Conditions on the Premises......................................................................4
Artificial Conditions on the Premises....................................................................4
Active conduct on the premises...........................................................................4
Entry due to necessity or appearance of public right-of-way................................4
DUTIES OWED TO PERSONS ON THE PREMISES.............................................................................4
Trespasser............................................................................................................ 4
Licensee............................................................................................................... 5
Invitee.................................................................................................................. 6
Modern Trend: Abolition of Categories.................................................................6
Landlord and Tenant.............................................................................................6
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS....................................7
DEFENSES TO NEGLIGENCE.....................................................................8
CONTRIBUTORY NEGLIGENCE AND LAST CLEAR CHANCE.................................................................8
Contributory Negligence.......................................................................................8
Last Clear Chance.................................................................................................8
COMPARATIVE NEGLIGENCE................................................................................................. 9
Introduction.......................................................................................................... 9
ASSUMPTION OF THE RISK.................................................................................................10
Introduction........................................................................................................ 10
Express Assumption of the Risk..........................................................................10
Implied Assumption of the Risk..........................................................................10
IMMUNITIES.........................................................................................11
INTRA-FAMILY IMMUNITIES.................................................................................................11
CHARITABLE IMMUNITY.....................................................................................................11
GOVERNMENTAL IMMUNITIES..............................................................................................11
Federal Government...........................................................................................11
STRICT LIABILITY..................................................................................13
IN GENERAL................................................................................................................ 13
FACTORS....................................................................................................................13
SPECIFIC ACTIVITIES....................................................................................................... 13
LIMITATIONS ON STRICT LIABILITY........................................................................................13
DEFENSES TO A STRICT LIABILITY ACTION...............................................................................14
STRICT LIABILITY: ANIMALS..............................................................................................14
Domestic Animals...............................................................................................14
Wild Animals.......................................................................................................14
Trespassing Animals...........................................................................................14
Defenses to Strict Liability..................................................................................14
PRODUCTS LIABILITY............................................................................15
LIABILITY FOR DEFECTIVE PRODUCTS: THE RESTATEMENTS...........................................................15
In General........................................................................................................... 15
Theories of Liability............................................................................................15
The Negligence Products Liability Action............................................................15
The Strict Liability Products Liability Action........................................................16
Duty to Warn Action...........................................................................................17
The Misrepresentation Action.............................................................................18
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PROPER PLAINTIFF AND DEFENDANT.....................................................................................19
Proper Plaintiff....................................................................................................19
Proper Defendant...............................................................................................19
Must Be Product, Not Service.............................................................................19
DEFENSES................................................................................................................... 19
Defenses to Negligence......................................................................................19
Defenses to Strict Liability..................................................................................19
Defenses to Comparative Negligence.................................................................19
Defenses to Products Liability............................................................................19
INTERFERENCE WITH RELATIONSHIPS....................................................20
DEFAMATION................................................................................................................ 20
Purpose............................................................................................................... 20
Libel and Slander................................................................................................20
Common Law Prima Facie Case..........................................................................20
Common Law Defenses......................................................................................23
DAMAGES.............................................................................................27
WRONGFUL DEATH AND SURVIVAL.......................................................................................27
Common Law......................................................................................................27
Proof of Liability Required...................................................................................27
Negligence Defenses Apply................................................................................27
COMPENSATORY DAMAGES................................................................................................28
Compensatory Damages for Personal Injuries....................................................28
Compensatory Damages for Harm to Property...................................................29
Collateral Source Rule – very controversial........................................................29
Plaintiff’s Duty to Mitigate Damages..................................................................30
PUNITIVE DAMAGES........................................................................................................ 30
Purpose of Punitive Damages.............................................................................30
Basis of Liability..................................................................................................30
No Right to Punitive Damages............................................................................30
Constitutional Limitations...................................................................................30
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Owners and Occupiers Liability

Duties Owed to Persons Off the Premises
Natural Conditions on the Premises
A possessor of land (an owner or occupier) owes no duty to prevent injury to persons off the premises from natural
conditions on the premises, even if the natural condition and its danger are known to the owner or occupier of the
land.
Example: Snow and freezing rain has a tendency to run down the side of a large hill on Sylvester’s
property and create a hazard on an adjacent highway. Sylvester owes no duty to correct this natural
condition on his property and is not liable to any motorist injured on the highway by the condition.
Exception: An owner or occupier has a duty of ordinary reasonable care to discover and prevent a tree
growing on urban, but not rural land, from falling and injuring a person off the premises.
Artificial Conditions on the Premises

An owner or occupier of land has a duty or ordinary reasonable care to discover and remedy artificial conditions on
the premises which present a foreseeable risk of harm to persons off the premises.
Example: Daisy, a pedestrian walking on the public sidewalk adjacent to Luke’s land, is injured when ice
falls from the roof of Luke’s house onto her head. Luke is liable for negligence if he failed to exercise
ordinary reasonable care. In this example, the roof is an artificial condition (i.e. man-made) that created a
potential risk of harm that ice would form on the roof and fall onto a pedestrian.
Active conduct on the premises

An owner or occupier of land has a duty of ordinary reasonable care to prevent injuries to persons off the premises
from the operation of machinery or other activities on the premises.
Entry due to necessity or appearance of public right-of-way

A person who enters land out of necessity or because the land appears to be part of the public right-of-way is treated
as a person off the premises to whom a duty of reasonable care is owed.
Example: A person who detours onto defendant’s land in order to avoid an obstruction on the public
highway is deemed to be a person off the premises to whom a duty of reasonable care is owed with regard
to artificial conditions and active operations on the premises.
Duties owed to persons on the premises

Trespasser
a) A trespasser is a person who enters upon the land of the owner or occupier with no permission (express or
implied) or other privilege to do so.
Note: A person lawfully on one portion of the premises becomes a trespasser if he or she enters
an area of the premises to which no consent or privilege has been granted.
Example: Don had consent to be present in the airport terminal but became a trespasser when he
entered the control tower with no permission or other privilege to do so.
b) No duty of ordinary reasonable care is owed by an owner and occupier of land to a trespasser. Thus, a
possessor of land will not be liable to a trespasser injured on the premises regardless of the danger
presented by conditions or activities on the land.
Note: An owner and occupier of land may not intentionally injure a trespasser on the land, either directly
or indirectly (as, for example, by a trap or spring gun), unless otherwise privileged to do so.
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c) Known and anticipated trespassers. If the owner or occupier has actual knowledge that the trespasser is
present on the land or ought to know that a trespasser is present because people frequently trespass at that
place on the land (a well-worn path, for example) then the owner or occupier has a duty to warn the
trespasser of hidden (latent), artificial conditions on the premises of which the owner or occupier has
knowledge.
d) Child trespasser doctrine. An owner or occupier of land owes a duty of ordinary reasonable care to
prevent physical harm to children trespassing on the premises from artificial conditions if:
1) The place where the condition exists is a place where the possessor of the land knows or has reason to
know that children are likely to trespass (i.e., is it foreseeable that children will trespass at that place on
the land);
2) The condition is one which the possessor can foresee presents an unreasonable risk of death or serious
bodily harm to children;
3) The child, because of his or her youth, does not discover the condition or appreciate the danger created
by the condition; and
4) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are
outweighed by the risk to children.
Note: There is no requirement that the child must be attracted, lured or enticed onto the premises by
the condition.
Note: The doctrine is not applicable to natural conditions on the land. It is irrelevant whether or not
the condition constitutes a “nuisance.”
Note: The doctrine seldom offers a remedy for older children since ordinarily a teenager is old enough
to appreciate the danger.
Example: A four-year-old child foreseeable trespasses on unfenced land and suffocates while trapped
in an abandoned automobile or refrigerator on the premises. Defendant will be held liable.
Note: The doctrine is not applicable to bodies of water (ponds or swimming pools) unless a unique,
artificial feature creates an unusual danger.
Licensee
A licensee is a person who enters upon the land of the owner and occupier simply with the express or implied
consent of the owner an occupier for the licensee’s own purposes and not for any business purpose of the possessor
of the land.
Note: Licensees are most commonly social guests or door-to-door canvassers on the premises. Police officers and
firefighters are treated like licensees on the premises.
a) An owner and occupier owes no duty of reasonable care to a licensee and has no duty to inspect the
premises or to discover or remedy dangerous conditions on the premises.
b) The duty owed by an owner or occupier of land to a licensee is merely to warn the licensee of any
dangerous, hidden (latent) condition on the premises of which the owner and occupier has actual
knowledge.
Note: An owner and occupier has a duty to warn of both natural and artificial conditions on the premises.
Note: There is no duty to warn a licensee of open and obvious hazards on the premises. An obvious
hazard is its own warning.
Example: Jennifer, a homeowner, knows that the basement stairs are rickety and in very poor condition.
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When social guest Brad begins to go to the basement, Jennifer has a duty to warn Brad of the hazard.
c) A licensee is owed a duty of ordinary reasonable care by the owner or occupier with regard to the use of
machinery or other active operations on the premises. This duty usually can be met by a warning.
Example: Ralph owes a duty of ordinary reasonable care to licensees as to elevators, escalators, hunting
and the operation of motor vehicles on the premises.
Invitee
A person is an invitee on the premises of another if the person entered as either a:
a. Business Invitee. A person is a business invitee on the premises if the person was invited,
expressly or impliedly, on to the premises for the potential economic benefit of the possessor of
the land.
Example: Customers and prospective customers, business guests, employees, independent

contractors, bill collectors, meter readers and letter carriers are business invitees on the premises
since they are present for the potential economic benefit of the owner and occupier.
Example: Jessica enters a restaurant during business hours because Magnus, her small child,
needs to use the restroom. Both Jessica and Magnus are business invitees on the premises because
there is a potential economic benefit to the owner and occupier.
b. Public Invitee. A public invitee is a person who enters upon premises open to the general public.
Examples: A person who enters a library, museum, cemetery, hospital, church or public park or
campground is a public invitee.
b) An invitee is owed a duty of ordinary reasonable care by an owner and occupier.
a. An owner an occupier must use ordinary reasonable care to inspect the premises, discover
dangerous conditions and warn an invitee of those dangerous conditions which were discovered or
reasonably ought to have been discovered by the owner and occupier of the premises.
Note: In rare cases where a warning may not be sufficient to protect the invitee the owner and
occupier owes a duty to remedy the condition.
b. An owner and occupier owes an invitee a duty of ordinary reasonable care to protect from injury
from machinery, animals or active operations on the premises.
Modern Trend: Abolition of Categories

A substantial minority of jurisdictions have abolished the categorical approach, at least as to licensees and invitees,
and impose a general duty of ordinary reasonable care under the circumstances to prevent foreseeable risks of harm
to persons lawfully on the premises. Under the modern trend the status of the plaintiff is merely one factor to be
considered when determining whether the owner and occupier acted reasonably under the circumstances.
Landlord and Tenant
a) The duty is owed by the landlord as to common areas, such as lobbies, parking lot, laundry room, etc.,
which remain under the control of the landlord.
b) The landlord will be liable for injuries caused by negligent repairs by the landlord, even if the landlord had
no legal duty to repair.
c) The landlord will continue to bear the duty and potential liability for any undisclosed dangerous conditions
on the premises, which is unknown to the tenant.
d) The landlord bears the duty and potential liability for defects on the premises, which are dangerous to
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persons outside the leased premises.
e) The landlord will be liable for dangerous conditions which the landlord had the contractual obligation to
repair but failed to repair.
Negligent Infliction of Emotional Distress

a) Negligent infliction of emotional distress is the name which has been given to a separate cause of action in
which the only damage suffered by the plaintiff is mental suffering.
Note: In any tort action in which the plaintiff has suffered a physical injury (a broken arm, for example)
the plaintiff is entitled to recover additional damages for any mental distress incurred by the plaintiff
without necessity of proving the additional elements required for the tort of negligent infliction of
emotional distress.
Example: Carson is run over by an automobile driven negligently by Britney. As a result of Britney’s
negligence Carson suffers a broken leg and recurring nightmares. Carson can recover damages for both the
broken leg and the nightmares without the necessity of proving the elements required for the tort of
negligent infliction of emotional distress.
b) In an action for negligent infliction of emotional distress the plaintiff must prove all of the element of a
negligence action (duty, breach of duty, causation and damage) and two additional elements.
1) Plaintiff’s emotional distress must be sufficiently real and serious that plaintiff suffered some
physical manifestation, or verifiable symptom, of the emotional distress. Many courts require that
the emotional distress be sufficiently serious that no reasonable person could be expected to
endure it without professional assistance, although there is no requirement to actually visit a
psychiatrist or psychologist.
Note: The emotional distress must be sufficiently serious that it would be debilitating to the
ordinary reasonable person (not the ultra-sensitive plaintiff), but if this threshold is met the
individual plaintiff may recover for all emotional distress actually suffered.
2) The plaintiff must have been within the “zone of danger” – at risk of suffering a physical impact
even though no actual physical impact is required.
Modern Trend: Under the modern trend a plaintiff outside the “zone of danger” may recover
damages for the emotional distress suffered as a result of a physical injury to another if the
plaintiff was:
i. Located near the scene of the accident;
ii. Actually observed the injury producing event at the time it occurred; and
iii. Is closely related to the victim of the physical injury.
Example: Gertrude’s daughter, Zelda is run over and seriously injured by a bus
negligently driven by Oscar.
• If Gertrude was standing next to Zelda and herself in danger of being run over
by the bus then Gertrude can recover damages for her emotional distress under
both the majority rule and the modern trend.
• If Gertrude was watching from across the street and watched Zelda get run over
from a position of safety then Gertrude can recover damages for emotional
distress under the modern trend but not the majority rule.
• If Gertrude was elsewhere and did not witness the injury being inflicted on
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Zelda but only heard about it, or saw it on the news on TV, then Gertrude cannot
recover under either the majority rule or the modern trend.
c) There are two exceptions where the plaintiff can maintain an action for negligent infliction of emotional
distress without the necessity of proving a physical manifestation or that plaintiff was in the zone of danger:
1) The negligent mishandling of the corpse of a close relative of the plaintiff; or
2) The negligent and erroneous notification of the death of a close relative of the plaintiff.
Defenses to Negligence
Contributory Negligence and Last Clear Chance
Contributory Negligence
1. Contributory negligence is the failure of the plaintiff to exercise ordinary reasonable care for her own
safety. The duty of an adult plaintiff, like that of an adult defendant, is an objective one measured by the
hypothetical ordinary reasonable person standard. A child is held to the subjective standard of an ordinary
reasonable child of similar age, intelligence, experience, etc.
Note: The violation of a stutate by an adult plaintiff is contributory negligence per se if the elements of the
negligence per se doctrine are met as applied to the conduct of the plaintiff.
2. Contributory Negligence is an affirmative defense upon which the defendant bears the burden or proof.
3. Whether a plaintiff is contributorily negligent is an issue of fact for the jury to resolve except in an
extraordinary case where reasonable persons could not disagree.
4. A plaintiff is not contributorily negligent unless his conduct is an actual and proximate cause of his injury.
The same actual and proximate causation rules govern the conduct of both plaintiff and defendant.
Note: criticized as overly harsh – if P is %1 contributorily negligent, D is not liable.
Example: P failed to use reasonable care for her own safety by attempting to climb a flight of extremely
slippery stairs with no handrail. P was injured when, while climbing the stairs, a ceiling negligently
maintained by the defendant fell on P’s head. P was not contributorily negligent because her failure to use
reasonable care bore no causal relation to the injury she suffered.
5. Contributory negligence is a total defense to a plaintiff’s action. If plaintiff is contributorily negligent, then
plaintiff is completely barred from any recovery from the defendant. This is true even if the defendant’s
negligence was much greater than that of the plaintiff.
Note: “Avoidable consequences,” the failure of a plaintiff to take reasonable precautions to protect herself
in the event of an accident, is different from contributory negligence and does not bar plaintiff’s cause of
action. An “avoidable consequence” is a failure to use reasonable care by the plaintiff which has no causal
relationship to the happening of the accident but which results in the plaintiff suffering greater damages
than if plaintiff had exercised reasonable care. Under the “avoidable consequences” doctrine, the plaintiff’s
damages are limited to the damages, which would have been incurred if plaintiff had used reasonable care.
Example: P fails to wear a seatbelt or motorcycle helmet and, as a result suffers greater injuries than
would have been incurred if plaintiff had worn the safety device. The failure to wear the helmet or seatbelt
is not contributory negligence since it did not cause the accident. Thus, P can recover for all damages,
which the plaintiff would have incurred if plaintiff had worn the safety device but not the greater damages
caused by the failure to wear the helmet or seatbelt.
Last Clear Chance
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1. The last clear chance doctrine is not a defense to be asserted by the defendant; instead, it is a doctrine used
by the plaintiff to avoid the bar of contributory negligence.
2. Under the last clear chance doctrine the plaintiff’s action is not barred if the plaintiff’s earlier contributory
negligence put plaintiff in a dangerous position from which she could not escape and the plaintiff is then
injured by the defendant’s later negligence. The last clear chance doctrine is based on timing: if the
defendant was negligent after the plaintiff, then the plaintiff may recover fully for defendant’s negligence.
Example: Eddie negligently gets his foot stuck in the railroad tracks and cannot extricate himself. The
engineer of the train negligently fails to keep a proper lookout and runs over Eddie. Eddie’s earlier
contributory negligence is ignored because defendant had the last clear chance to avoid the accident. But if
the train was unable to stop in time to avoid Eddie solely because the brakes were not properly maintained,
then the last clear chance doctrine would not apply because the defendant’s negligence came before
plaintiff’s contributory negligence.
Note: If the plaintiff is not helpless, but simply inattentive, and could remove herself from the position of
danger but negligently fails to do so, then the last clear chance doctrine only applies if defendant actually
knew, not merely should have known, of plaintiff’s peril.
Comparative Negligence
Introduction
1. Under comparative negligence the fault of the plaintiff does not completely bar recovery; instead, it merely
reduces the amount of plaintiff’s recovery by the proportion of plaintiff’s fault.
Example: Kyle and Hartman collide at an intersection. Plaintiff Kyle is 20% at fault and defendant
Hartman is 80% at fault. Plaintiff Kyle suffers $100,000 in damages. Kyle’s recovery is reduced by 20%
and he recovers $80,000
Note: The fault of either party is ignored unless it is an actual and proximate cause of the injury producing
event.
Note: Under comparative negligence the proportion of each party’s fault is an issue of fact to be
determined by the jury.
2. The vast majority of American jurisdictions have adopted comparative negligence according to one of the
following two rules:
a. General Rule: Modified Comparative Negligence

In most states the plaintiff’s action is barred if plaintiff’s comparative fault is greater than that of
the defendant. If plaintiff’s comparative fault is less than or equal to that of the defendant then the
amount of plaintiff’s recovery is reduced by the proportion of plaintiff’s fault.
Example: Plaintiff and defendant are each %50 at fault. Plaintiff’s recovery is reduced by 50%.
But if plaintiff was 50.1% at fault then plaintiff’s cause of action is wholly barred.
Note: If there are multiple defendants the fault of plaintiff is compared to the total or aggregate
fault of all of the defendants.
Example 2: Plaintiff Homer is 40% at fault and defendants Marge and Bart are each 30% at fault
in causing plaintiff injury. Plaintiff Homer’s recovery is reduced by 40%
Note: Some states modify comparative fault by barring plaintiff’s recovery when plaintiff’s fault
is equal to or greater than defendant’s fault. Under this minority rule if plaintiff and defendant(s)
are each 50% at fault then plaintiff’s action is barred.
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b. Minority Rule: Pure Comparative Negligence
Under pure comparative negligence, adopted by a minority of states, the plaintiff’s recovery is
reduced, but never barred, by the proportion of plaintiff’s fault regardless of how great.
Example: Plaintiff Puffy and defendant Jennifer are involved in an intersection collision.
Plaintiff Puffy is 99% at fault and defendant Jennifer is 1% at fault. Plaintiff Puffy recovers 1% of
his damages from Jennifer.
c. Under comparative negligence the doctrine of last clear chance is abolished and the timing of the
fault of each of the parties is merely a factor which may be considered by the jury in determining
the proportion of fault of each of the parties.
Assumption of the Risk

Introduction
A plaintiff who fully understands a risk of harm and who voluntarily chooses to accept or assume that risk
historically has been barred from recovery.
Express Assumption of the Risk

A plaintiff will be barred from any recovery against the defendant if the plaintiff explicitly enters into an agreement,
oral or written, releasing defendant from liability or agreeing to assume the risk.
Example: Before participating in an auto race, Dale signed an agreement releasing the owner of the racetrack from
any liability for any injuries suffered by Dale in the auto race. Dale has expressly assumed the risk.
Exception: The following express assumption of the risk agreements have been declared void as against public
policy:
a) Agreements which purport to release product suppliers from liability for personal injuries caused by
defective products;
b) Agreements which purport to release a doctor or hospital from liability for Medical Malpractice; and
c) Agreements which purport to insulate businesses affected with a public interest, such as public utilities and
common carriers, from negligence liability.
Implied Assumption of the Risk

1. A plaintiff may impliedly assume a risk by conduct of the plaintiff, which shows that the plaintiff knew the
risk and voluntarily chose to assume or encounter the risk.
2. Implied assumption of the risk has three elements. The plaintiff must have:
a. Knowledge of the Particular Risk

This is a subjective test based on the actual knowledge of the particular plaintiff. If the plaintiff
did not subjectively know of the risk, which an ordinary reasonable person would have known, the
plaintiff may be comparatively negligent but did not assume the risk.
b. Voluntary Assumption
The plaintiff must have voluntarily chosen to encounter the risk.
Example: Ralph, whose home is located adjacent to a golf course, does not voluntarily assume
the risk of being hit by a golf ball in his own yard. He has no choice to stay inside at all times.
c. Of that Risk
The plaintiff only assumes the risk of the particular risk which the plaintiff knowingly and
voluntarily assumed, and not another, different risk.
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3. Exception
There is no implied assumption of the risk when the plaintiff is acting in an emergency situation.
Example: Jimmy leaps in front of a speeding automobile in order to save the life of a small child standing
in the auto’s path. Jimmy did not assume the risk of being hit by the auto because he was acting in an
emergency situation.
4. States which have adopted comparative negligence have abolished implied assumption of the risk as a
separate defense. In a comparative negligence jurisdiction, the facts constituting implied assumption of the
risk may be considered as part of plaintiff’s fault to reduce the amount of plaintiff’s recovery.
*Traditionally, assumption of the risk, both express and implied, has been a good defense to both negligence and
strict liability actions.
Immunities
Intra-Family Immunities
a) Spousal immunity has been abolished in the majority of states. Today, either spouse may sue the other
spouse for any tort.
b) The modern trend is to abolish parent-child immunity. In those states which have not wholly abolished
parent-child immunity, children may sue a parent for most torts but not for negligent parenting.
c) The law has never recognized any other form of intra-family immunities and, for example, siblings,
cousins, etc., may sue each other
Charitable Immunity
Charitable immunity has been abolished and a charitable organization may be sued just like any other defendant.
Governmental Immunities
Federal Government
1. Federal Government
a. The federal government retains sovereign immunity except insofar as it has been waived in the
Federal Tort Claims Act. As a general rule the federal government may be sued for negligence
not involving a discretionary function.
b. In the Federal Tort Claims Act the federal government has not consented to be sued, and retains
sovereign immunity, for:
i. Discretionary functions. Governmental action or inaction is a discretionary function if

it involves a discretionary choice based on a social, economic or political policy
judgment is involved.
ii. Intentional torts. The federal government may not be sued for most intentional torts,
including assault, battery, false arrest, false imprisonment, malicious prosecution, libel,
slander, misrepresentation, deceit and interference with contractual rights.
Exception: The federal government may be sued for the intentional torts of assault,
battery, false arrest, and false imprisonment, abuse of process and malicious prosecution
if committed by a law enforcement officer.
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iii. Strict tort liability. The federal government may not be sued on a strict liability theory.
Note: A government contractor who supplies a product to the federal government will
share the government’s immunity and cannot be held strictly liable if the contractor
adhered to specifications approved by the federal government and warned the
government of any known product dangers.
iv. Injuries suffered by service persons arising out of or incident to military service.
c. The Federal Tort Claims Act allows the federal government to be sued for negligence and
ministerial acts (i.e. not replacing light in lighthouse)
d. The Westfall Act provides immunity for federal officials. Since you can sue the federal
government, you cannot sue the federal employee.
2. State Governments
Most states have waived their sovereign immunity by statutes, which are patterned after the Federal Tort
Claims Act. Thus, state governments generally may be sued for negligence but not discretionary functions.
3. Municipal Governments
a. Historically, municipal governments were immune for governmental functions (police and fire
protection, etc.) but not for proprietary functions (those activities commonly engaged in by private
businesses).
b. The modern trend is for state legislatures to abrogate sovereign immunity for municipalities. The
statutes vary from state to state but generally municipalities are immune for discretionary
functions.
4. Government Officers and Employees
a. Judges and legislators have absolute immunity from tort liability.
b. Federal government employees have complete immunity from common law tort liability and the
exclusive remedy is an action against the federal government under the Federal Tort Claims Act.
Note: Under some limited circumstances a federal government employee may be liable for
violating the Constitution or some specific statutes.
c. State and local executive officers are generally immune from liability for discretionary acts (unless
done in bad faith, malice or corruption) but not for ministerial acts.
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Strict Liability
In General
An activity is considered abnormally dangerous if it:
1. Creates a risk of great harm
2. that cannot be eliminated by the utmost care; and
3. is not a matter of common usage.
Factors
The Restatement Second of Torts provides that the judge should weigh the following factors, with no specific
weight assigned to any given factor, to determine whether an activity is abnormally dangerous (2 can outweigh 4):
1. The degree of risk of harm to persons or property;
2. The magnitude of the harm;
3. The inevitability of some risk regardless of the amount of care exercised;
4. The ordinary or unusual nature of the activity in the community;
5. The extent to which the activity is a matter of common useage, and
6. The value of the activity as compared to risk presented.
Specific Activities
Courts have found the following activities to be abnormally dangerous:
1. Storage and use (blasting) of explosives;

2. Pile-driving;
3. Fumigating;
4. Crop-dusting;
5. Collection of water in reservoirs, and
6. Ground damage caused by airplanes.
Limitations on Strict Liability

Even if the defendant was engaged in an abnormally dangerous activity, the plaintiff must still prove:
1. Defendant’s abnormally dangerous activity was an actual cause of plaintiff’s harm, and
2. Defendant’s abnormally dangerous activity was a proximate cause of plaintiff’s harm, including:
a. Plaintiff was within the class of persons to whom a risk of harm was foreseeable.
b. The harm must be caused by the characteristic that made defendant’s activity abnormally
dangerous.
c. The harm was not the result of the abnormal sensitivities of plaintiff’s own activities.
Example: The vibrations from defendant’s blasting caused plaintiff’s mink to become
exceedingly nervous and refuse to mate. No strict liability exists because of rules (b) and (c).
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Defenses to a Strict Liability Action
1. Contributory negligence is not a defense to a strict liability action.
2. Assumption of the risk is a defense to a strict liability action
Note: Assumption of the risk includes what is sometimes called “knowing contributory negligence,” where
the plaintiff, knowing the risk , voluntarily and unreasonably chooses to encounter it.
3. Comparative negligence is a good defense.
Note: The plaintiff’s failure to discover the risk or failure to take unreasonable or unjustified measures to
avoid the risk is not comparative negligence. For example, plaintiff is not required to abandon her home
because defendant is blasting or fumigating next door.
Strict Liability: Animals

Domestic Animals
The owner of a domestic animal, such as a dog or cat, will not be strictly liable for injuries caused by the animal
unless the owner knew or had reason to know of the animal’s dangerous propensity. (e.g. One- Bite Rule)
Wild Animals
The owner of a wild animal will be strictly liable for injuries caused by the wild animal even if the owner exercised
utmost care to prevent the harm. (Zoos are an exception – liable for negligence only)
Note: Wild animals include lions, tigers and bears as well as coyotes, chimps, leopards, monkeys and reptiles.
Trespassing Animals
The owner is strictly liable for harm cause by any animal trespassing on the land of another.
Defenses to Strict Liability

• Assumption of the Risk
• Comparative Negligence, but not contributory negligence
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Products Liability
Liability for Defective Products: The Restatements
In General
Products liability refers generally to the law governing the liability of manufacturers and sellers of defective
products for the harm to persons and property caused by those products.
Theories of Liability
A product liability action may be maintained on any one or more of the following theories of liability depending on
which one(s) apply to the facts of the particular case:
a) Intentional tort, such as battery.
b) Breach of warranty under the U.C.C.
i. Express Warranty;
ii. Implied Warranty of Merchantability, and
iii. Implied Warranty of Fitness for Particular Purpose.
Note: Warranty disclaimers under the UC.C. are not a defense to a tort action.
c) Negligence.
d) Strict Tort.
e) Misrepresentation.
The Negligence Products Liability Action
a) In products liability action based on negligence the plaintiff must prove all the elements of a negligence
cause of action, duty, breach of duty, actual and proximate causation and damage.
b) The plaintiff must prove some negligent conduct by the manufacturer of the product which caused the
product to be defective, such as negligence in the design, manufacture or formulation, inspection, testing,
warnings or marketing of the product.
i. The manufacturer will be held to the standard of care of the ordinary reasonable person with
expert knowledge regarding the product and its potential uses and dangers.
ii. To be found negligent the manufacturer’s conduct must create an unreasonable risk of harm to a
person who might be foreseeably injured by the product.
c) It is very rare that negligence can be proven against a wholesaler or retailer of a product. There are,
however, two situations where liability has been imposed:
i. A wholesaler or retailer who holds itself out to the public as the manufacturer of the product will
be held liable as if it were the actual manufacturer.
Example: Sears sells tires labeled with the Sears brand name as if it manufactured the tires itself
even though the tires were actually manufactured by Firestone. Sears will be held to the standard
of care of the manufacturer and will not be permitted to deny that it manufactured the tires.
ii. A wholesaler or retailer may be held negligent for failure to warn of any defect or dangerous
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propensities of the product that it knows or has reason to know of.
Example: Bubba’s Sporting Goods, a retailer, has been warned by the manufacturer not to sell its
air rifle to children under sixteen years of age because the risk of eye injuries. Bubba’s Sporting
Goods sells an air rifle to a nine-year-old child who promptly shoots out his eye. Bubba’s can be
found liable for negligence.
d) In a negligence action for products liability the plaintiff must prove that the defendant’s negligent conduct
was the actual and proximate cause of plaintiff’s injury.
i. The plaintiff must be within the class of persons to whom a risk of injury by the product
is foreseeable; i.e., the plaintiff must be a person who might be reasonably foreseen to use,
consume or be affected by the product.
Example: Tom, a hitchhiker, is run over by an automobile negligently manufactured by Ford

Motor Company when the steering failed. Tom is a foreseeable plaintiff and can sue Ford Motor
Company.
ii. The defendant will be held liable for any harm caused if the product was used or misused
in a foreseeable manner but not if the misuse was unforeseeable.
Example: It is foreseeable that an automobile may be involved in a collision, thus the

manufacturer may be liable if it negligently makes an “uncrashworthy” auto, an auto that creates
an unreasonable risk of additional or enhanced injuries in excess of those caused by the initial
impact.
Example: Sadie decides to commit suicide by suffocating herself in the trunk of her auto. Once
inside the trunk Sadie changes her mind. The manufacturer of the auto is not negligent for not
designing the auto with an inside latch to open the trunk. Indecisive suicide attempts are not a
foreseeable misuse of an auto.
The Strict Liability Products Liability Action

The Restatement, 2d, of Torts Section 402A, which has been adopted by most states, provides that anyone “who
sells any product in a defective condition unreasonably dangerous to the user or consumer [is strictly liable] if (a) the
seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or
consumer without substantial change in the condition in which it is sold.
Note: In a strict tort action the plaintiff must still prove duty, breach of the duty, actual and proximate causation and
damage. The distinction between negligence and strict liability is that in a strict liability action, the duty is based on
the condition of the product and the conduct (reasonable care) of the defendant is essentially irrelevant.
a) The product must be defective.
i. There are three ways in which a product can be defective:
a. Manufacturing defect. A product may be defective because it was not manufactured as

intended by the manufacturer. Thus, a product with a manufacturing defect will be different than
similar products made by the same defendant.
b. Design defect. A product may be defective because, even though it is property

manufactured as intended, the design of the product itself is defective. In the case of a design
defect the defect will affect the entire product line.
c. Inadequate warning defect. A product which is properly designed and manufactured

may still be defective because it is sold without a warning necessary to alert consumers to
dangers of the product.
Example: Defendant manufactures a household-cleaning product. The product will be defective

if it is sold without a warning that drinking the product will cause death.
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ii. The Risk/Utility Balancing Test.
a. The usefulness and desirability of the product to the individual user and to the public as a
whole;
b. The probability and magnitude of potential injury;
c. The availability of safer, feasible alternatives;
Note: It is extremely rare for a product to be found defective absent a feasible alternative design
of the product which would have avoided or prevented the injury to plaintiff.
Example: Plaintiff was injured using a power saw manufactured by defendant. If the plaintiff’s
injury could have been avoided by an added safety feature (such as a safety guard or an automatic
shut-off switch) which was available in the industry, then the defendant will likely be found liable.
d. The manufacturers ability to eliminate the unsafe character;
e. The user’s ability to avoid the danger;
f. The user’s probable awareness of the danger; and
g. The manufacturer’s ability to spread the loss.
iii. A defendant cannot be held strictly liable unless the product was defective at the time it left the control
of the defendant. Thus, there must have been no substantial change in the condition of the product
prior to the plaintiff’s injury.
b) The product must be unreasonably dangerous
i. A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be

contemplated by the ordinary consumer.
Note: In applying this test the consumer is presumed to have the ordinary knowledge common to the
community regarding the characteristics of the product.
ii. A failure by the manufacturer to provide adequate instructions and warning may make a product
unreasonably dangerous.
c) A manufacturer cannot be found strictly liable for an unavoidably unsafe product, a product that is
incapable of being made completely safe for its intended and ordinary use, provided that the product has a
great utility that far outweighs the dangers of ordinary use. May prescription drugs which have harmful
side effects fall within this rule.
Note: The unavoidably unsafe product rule only prevents the manufacturer from strict liability. The
manufacturer may still be held liable for negligence resulting in a manufacturing defect or for lack of
adequate instructions or warnings.
Duty to Warn Action

An action against a manufacturer for failure to warn theoretically can be based on either strict liability or negligence.
In either case the manufacturer’s duty is the same: to adequately warn against product dangers which are reasonably
foreseeable by the manufacturer. This is essentially a negligence standard.
Note: A retailer or wholesaler’s duty is only to warn of dangers of which the seller had actual knowledge or a
specific reason to know. Thus, a retailer or wholesaler will seldom be held liable for a failure to warn.
a. The absence or inadequacy of the warning must render the product unreasonably dangerous.
b. There is no duty to warn of dangers which are open and obvious.

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Example: A manufacturer has no duty to warn that a knife is sharp and may cause cuts.
Exception: A manufacturer has a duty to warn of non-obvious available safety devices which would
reduce or eliminate the risk of an obvious hazard.
A warning may be inadequate for either of two reasons:
a. Inadequacy of form. The form of the warning, including its conspicuousness, prominence, contrasting
color or size of print must be sufficient to alert a reasonable person to the danger of the product;
b. Inadequacy of content. The content of the warning must be unambiguous and sufficient to warn the
ordinary reasonable person of the specific danger and how it can be avoided.
Example: A warning on a bottle of eye drops that the product “may cause a decrease in visual activity” is
not an adequate warning that the product may cause blindness.
If there is a danger of allergic reaction to the product by a substantial number of persons, then the manufacturer has
a duty to warn of that allergic reaction. When the allergic group is small the duty to warn exists only if the allergic
reaction is severe.
The plaintiff must also prove causation that the injury was caused by the lack of an adequate warning. Two
presumptions are used to help the plaintiff here:
a. If no warning was given, it will be presumed that the injured person would have read and heeded an
adequate warning;
b. If a warning was given but was inadequate, it will be presumed that the plaintiff would have heeded the
warning if in fact the plaintiff read it; otherwise (if the plaintiff did not read the warning) it is presumed that
the lack of a warning did not cause plaintiff’s injury.
The Misrepresentation Action

One engaged in the business of selling goods who makes to the public a misrepresentation of a material fact
concerning the character or quality of the goods sold by him is strictly liable for physical harm to a consumer of the
goods caused by justifiable reliance upon the misrepresentation.
Example: A manufacturer of automobiles advertises on television or in newspapers, magazines or brochures that

the windshield of the automobile is made of “shatter proof glass.” The purchaser of the auto is injured when a
pebble shatters the windshield.
The seller is strictly liable if the product does not conform to the public misrepresentation. This is true even if the
product is not defective if the product is not as represented.
Requirements
a. The misrepresentation must be made to the public generally. It is not sufficient if the misrepresentation
was made to the plaintiff individually.
b. The misrepresentation must be of a material fact and not mere “puffing” or “sales talk.”
c. There must be justifiable and reasonable reliance on the misrepresentation, but the reliance does not have to
be by the plaintiff.
Example: Tammy purchases an automobile in reliance on a representation in a television advertisement

that the auto had state of the art brakes. Tammy loaned the car to Butch who was injured when the brakes
failed. Tammy’s reliance is sufficient.
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Proper Plaintiff and Defendant
Proper Plaintiff
Any person who is in the class of persons to whom the product presents a foreseeable risk of physical harm may
maintain a negligence or strict liability products action. No privity of contract is required.
Proper Defendant
In a strict liability case the defendant must be in the business of selling goods of that kind.
Example: Paul, a law professor, sells his family automobile to Sid in an isolated sale. Sid is seriously injured the
next day when the auto explodes. Paul is not strictly liable because he is not in the business of selling autos.
Note: Most courts now impose strict liability on lessors as well as sellers of goods provided that the defendant is a
commercial supplier of goods of that kind.
Must Be Product, Not Service

Products liability does not apply to the sale of services. Thus, there can be no products liability action if the
transaction was predominately the sale of a service.
Note: The sale of food and drink in a restaurant or tavern is the sale of a product.
Defenses
Defenses to Negligence
In a negligence action, contributory or comparative negligence (depending on the jurisdiction) and assumption of the
risk are both good defenses.
Note: Most states have adopted comparative negligence and merged assumption of the risk into comparative
negligence.
Defenses to Strict Liability

In a strict liability action, comparative negligence is a good defense to reduce the amount of plaintiff’s damages, and
assumption of the risk has been merged in comparative negligence and abolished as a separate defense.
Contributory negligence is not a good defense
Defenses to Comparative Negligence

The following situations will not give rise to comparative negligence:
a. A plaintiff’s mere failure to discover the defect in a product is not comparative negligence.
b. A plaintiff’s use of dangerous machinery on the job at work ordinarily will not be comparative negligence
because the worker had no choice but to use the product.
Defenses to Products Liability

A plaintiff’s foreseeable misuse or alteration of a product will not be a good defense and will not defeat liability. On
the other hand, a plaintiff’s unforeseeable misuses or alteration of a product will defeat the defendant’s liability.
Note: Many misuses of a product are foreseeable and, in close cases, the courts will tend to find the misuse
foreseeable.
A defendant will not be liable if the risk created by the product was scientifically unknowable at the time the
defendant placed the product in the stream of commerce.
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Interference With Relationships

Defamation
Purpose
The purpose of the law of defamation is to protect the reputation and good name of the plaintiff.
Note: Since the essence of the tort of defamation is harm to plaintiff’s reputation, the plaintiff may not recover
damages for emotional distress absent injury to reputation.
Libel and Slander

There are two kinds of defamation: Libel and slander:
Libel
Written defamation, including statements made in any permanent form such as radio, television, motion
picture, videotape and the internet.
Slander
Oral defamation.
Note: A verbal republication (repetition) of a written defamation is libel. A written repetition of an oral
defamation also is libel.
Common Law Prima Facie Case
Elements
1. A defamatory statement;
2. About the plaintiff;
3. Publication to a third person; and
4. Damage to plaintiff’s reputation.
Defamatory Statement
i. A statement is defamatory if it tends to harm the reputation of the plaintiff so as to lower her in the
esteem of the community or to deter third persons from associating with her.
Example: Defendant stated, “Ike murdered his mother.” The statement is defamatory.
ii. The statement must be an assertion of fact. Pure opinion, insults or hyperbole are not actionable as
defamation.
Example: The statement, “Ernie is as ugly as a toad,” is not defamatory. It is merely an insulting
opinion.
Example: The statement that a real estate developer’s bargaining position in a dispute with a city
council is “blackmail” is not defamatory because any reasonable person would know that the statement
is mere hyperbole and not actually an accusation of criminal conduct.
Note: A defamatory statement of fact is actionable despite the fact that the defendant couches the
statement in the language of opinion. For example, the statement, “I think, or it’s my opinion, that Ike
murdered his mother,” is a statement of fact.
iii. The judge determines whether a statement is capable of having a defamatory meaning, i.e., whether a
reasonable person could understand a statement to convey a defamatory meaning. If so, then it is for
the jury to decide whether it is actually defamatory. Both the form and the context of the statement are
relevant to this determination.
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Note: A newspaper publishes the statement that Tiffany was an “associate” of Bill Clinton. A
reasonable jury could find that the statement, because of the use of quotation marks, implies a sexual
relationship and is defamatory.
iv. A statement can be defamatory even though it does not harm the plaintiff’s reputation in the eyes of the
majority. It is sufficient that plaintiff’s reputation is lowered in the eyes of a substantial and
respectable minority.
v. If the statement is innocent on its face, the plaintiff must prove both:
a) Inducement: (the additional facts necessary to make the statement defamatory); and
b) Innuendo: (the defamatory meaning of the statement).
Example: Defendant publishes the statement, “Joe can be found frequently at 1212 Maple
Street.” This statement appears innocent; therefore Joe must prove the inducement (that 1212
Maple Street is a house of prostitution) and the innuendo (that Joe engages in immoral sexual
activity).
About the Plaintiff

i. The plaintiff must prove that the defamatory statement referred to the plaintiff and not someone else.
Example: Bart makes a defamatory statement about Marge. Marge’s husband, Homer, has no cause
of action for defamation of his wife.
ii. Where the defamatory statement on its face does not refer to the plaintiff, the plaintiff must prove the
“colloquium,” the extrinsic facts which identify the plaintiff as the object of the defamatory statement.
Example: Defendant posted on the company bulletin board a cartoon depicting a supervisor engaging
in a sexual act with an unidentified redheaded woman. Plaintiff must prove the “colloquium,” the
extrinsic facts proving that she was the person depicted in the cartoon.
iii. If the defamatory statement refers to unidentified members of a group, then the following rules apply:
a) Unidentified member(s) of a large group have no defamation action;
b) Unidentified member(s) of a small group (usually twenty-five persons or less) can sue for
defamation, regardless of whether the statement refers to all or only some members.
iv. A corporation or other business entity can maintain a defamation action for statements that injure the
reputation of the corporation itself.
Note: A defamatory statement about a product, rather than the corporation itself, is actionable as
disparagement, not defamation.
v. Dead people cannot be defamed, and neither the estate nor the relatives of the deceased can sue for
defamation.
Note: A defamatory statement about a living person is actionable even if the statement also involves a
dead person.
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Publication
i. The plaintiff must prove that the defendant communicated (“published”) the defamatory statement to a
third person, someone other than the plaintiff.
Example: Demi says to Bruce, with no one else present, “you are a drug addict.” Bruce has no claim
for defamation because the statement was not published to any third person by the defendant.
Note: A statement made to an agent of the plaintiff, such as plaintiff’s attorney, has not been
published to a third person.
Example: Defendant makes a defamatory statement about the plaintiff in Latin to a person who does
not understand it because the recipient does no understand Latin. There has been no publication.
ii. Any person who makes a defamatory statement to a third person can be liable for defamation. The
defendant does not have to be the author of the statement. A person who repeats a defamatory
statement is just as liable as the person who made it originally.
Example: Harriet tells Mildred, “The Daily News today said O.J. is a murderer.” O.J. can sue Harriet
for defamation even if she is merely repeating accurately a statement that appeared in the Daily News.
Exception: Mere transmitters or disseminators, such as libraries, bookstores, telephone companies

and telegraph companies, are treated differently than “speakers” and can only be held liable if they
knew or reasonably should have known of the defamatory content of the material.
iii. The defendant must have published the statement intentionally or negligently to be liable for
defamation.
Note: The intent or negligence requirement goes only to the element of publication. There is no
requirement at common law of intent or negligence regarding any other element (including defamatory
content). Thus, it is irrelevant that the defendant believed the statement was true or that the defendant
did not know the statement was defamatory.
iv. Under the Single Publication Rule, the entire edition of a book or magazine constitutes a single
publication for purposes of the statute of limitations. Thus, the statute of limitations begins to run
when the first copy of the book or magazine is disseminated.
Damages
i. Damage to reputation is an essential element of a defamation action. At common law general damages
are presumed for libel (written defamation).
ii. There are three kinds of damages which are potentially recoverable in a defamation action, depending
upon the particular circumstances:
a) General Damages: Plaintiff in a libel action can recover damages for the injury to his or her
reputation. Such general damages are presumed in a libel action at common law and plaintiff
may, but is not required to, present evidence of the injury to reputation.
b) Actual Damages: In some cases the U.S. Constitution requires the plaintiff to introduce
admissible evidence of the fact, but not the amount, of injury to plaintiff’s reputation.
c) Special Damages: Special damages are pecuniary, or “out-of-pocket” losses suffered by the
plaintiff, such as the loss of a job, business opportunity, gift or something with economic
value.
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iii. In an action for slander (oral defamation) the plaintiff must prove special damages or the case will be
dismissed. Once the plaintiff proves special damages then the plaintiff can recover general damages.
Exception: If the defendant’s verbal statement constitutes slander per se then the plaintiff can recover
general (presumed) damages without proof of special damages. There are four categories of lander per
se:
a) A statement which charges a serious criminal offense or a crime of moral turpitude.
Example: The oral statement, “Nancy murdered Sid” is slanderous per se and plaintiff
Nancy does not have to prove special damages.
b) A statement that plaintiff is presently suffering from a “loathsome” disease. This category is
limited to leprosy and venereal diseases (i.e., AIDS, syphilis, etc.)
c) A statement damaging to plaintiff’s business, trade or profession.
Example: A verbal statement that a minister has had numerous adulterous affairs is
incompatible with his profession and is slanderous per se. The same statement about a lawyer
is not slanderous per se.
d) A statement accusing a female of lack of chastity.
Example: A jealous Martha says verbally that Joanna had sex with her boyfriend. This is
slander per se. The same statement about a male is not slander per se and probably not even
defamatory.
Common Law Defenses
Truth
At common law, a defamatory statement is presumed to be false, and the burden is on the defendant to
prove truth as an affirmative defense.
The defendant does not have to prove that the statement was literally true. It is sufficient that the statement
is substantially true. This means that the sting or gist (that which makes the statement defamatory) of the
statement must be proven true.
Example: The Daily News published the statement, “Bundy murdered twenty seven people” is
substantially true even though Bundy in reality only murdered twenty-one people. On the other hand, if in
reality Bundy robbed twenty-seven banks but killed no one then the statement is not substantially true.
Note: A newspaper which quotes a person as making a statement which in fact the person never made is
not necessarily liable for defamation. It is a good defense that the substance of the statement is
substantially true.
Absolute Privileges
An absolute privilege is a defense which, if it is applicable, cannot be lost. An absolute privilege is a

complete defense which is not defeated even if the defendant knows the defamatory statement is false or
acts with malice.
There are four absolute privileges:
i. Statements made in the course of government proceedings;
ii. Statements made by one spouse to another;
iii. Compelled broadcasts; and

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iv. Consent (must have consented to have been defamed).
Statements made in the course of government proceedings.
Judicial Proceedings. A statement made by anyone, including judges, lawyers, parties, witnesses
and jurors, in the course of a judicial or quasi-judicial proceeding is absolutely privileged. This
privilege extends to statements made in preparation for litigation (such as interviewing potential
witnesses) as long as the statement bears some relation to the proceeding.
Legislative Proceedings. A statement made by a legislator, legislative aide, or a witness at a

legislative hearing is absolutely privileged. This privilege does not apply to a statement made by a
legislator while campaigning or communicating with constituents.
Example: Senator Malicious makes a defamatory statement about Ida Innocent in a speech given
on the floor of the U.S. Senate. Senator Malicious knew the statement was totally false and
uttered it only because he wanted to injure Ida’s reputation out of pure spite. Senator Malicious is
absolutely privileged and cannot be held liable for defamation.
Executive Proceedings. A statement made by a high-level executive official in the course of

executive proceedings is absolutely privileged.
A statement made privately by one spouse to his or her mate is

absolutely privileged.
Qualified Privileges
a) A qualified privilege is one which can be lost if it is abused. A qualified privilege can be
abused and lost in either one of two situations:
i. Excessive Publication. A qualified privilege is lost if the statement is made to a

person(s) who is not privileged to receive it.
Example: A former employer is qualifiedly privileged to send a negative letter of

reference to a prospective employer. This privilege will be lost, because of excessive
publication, if the former employer sends a copy of the letter to the local newspaper.
ii. Malice. A qualified privilege is lost if the statement is made out of malice in the
sense of spite, ill will or hostility toward the person about whom the statement is
made. The modern trend is to treat the qualified privilege as lost if it s made with
knowledge, or reckless disregard, of the statement’s falsity.
b) The defendant has the burden of proof of the existence of a qualified privilege. Then the
burden shifts to the plaintiff to prove that the privilege was abused.
c) The qualified privileges:
i. Statements made in the public interest
Example: A person has a qualified privilege to notify the police about an alleged
crime and to identify the suspected perpetrator.
ii. Statements made in the important self-interest of the speaker are qualifiedly
privileged. Thus, a person wrongly accused of a crime has a qualified privilege to
inform the proper authorities that another person is the actual guilty party.
iii. Statements made in the interest of the recipient are qualifiedly privileged.
Example: A letter of reference from a present or former employer to a prospective

future employer is qualifiedly privileged.
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iv. Statements made in the common interest of members of a group, such as a church,
labor union or business enterprise.
v. Fair and accurate reports of public proceedings and documents are qualifiedly
privileged. Thus, a journalist may repeat a defamatory statement made by a third
party at a public meeting even if the reporter knows the statement is false. The
privilege is lost if the report is inaccurate or unfair.
Constitutional Modifications of Common Law
i. When the defendant’s speech involves a matter of public concern, then the First Amendment to
the United States Constitution alters the common law of defamation regarding fault, falsity and
damages.
ii. If the defendant’s speech involves only a matter of private concern, and does not implicate any
matter of public concern, then the common law of defamation controls and the following
constitutional rules are not applicable
Example: A credit reporting company erroneously stated to five of its private subscribers that the
plaintiff had filed for bankruptcy. This speech involves only a matter of purely private concern.
Therefore, the defamation case is decided solely on the basis of common law.
iii. Constitutional Fault Rules
a) If the plaintiff is a public official or a public figure, then the plaintiff is required to prove
that the defendant acted with “actual malice.”
i. A public official is any government employee who has substantial responsibility

in government affairs. Thus, any government employee who has policy-making
authority or whose actions would invite public scrutiny is a public official.
Example: The Daily News publishes an article which states, “Officer

Nightstick repeatedly has beaten persons violating the local speed limit.”
Officer Nightstick, a municipal police officer, is a public official and must prove
that the Daily News published the article with actual malice.
Note: A candidate for election to public office is a public official.
ii. There are two categories of public figure plaintiffs:
1. All-purpose public figures are persons who have pervasive fame or

notoriety in the community. The relevant community can be either
local or national. Examples of public figures on the nationally level
include Michael Jordan, Madonna and David Letterman.
A PERSON IS NOT A PUBLIC FIGURE SIMPLY BECAUSE HE

OR SHE IS MARRIED OR OTHERWISE RELATED TO A PUBLIC
FIGURE. ONE CAN ONLY BE A PUBLIC FIGURE AS A RESULT
OF HIS OR HER OWN CONDUCT.
2. Limited purpose public figures are private persons who voluntarily

thrust themselves, or are drawn, into a matter of public concern. A
limited purpose public figure is a public figure only with respect to that
particular controversy.
Example: Belinda Gates files for divorce from her husband, a

nationally known President of a large tech company. Belinda Gates is
represented by her lawyer, Dewey Cheatum. The trial draws the
attention of the national media because of the lurid, scandalous nature
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of the testimony. Neither Belinda Gates nor Dewey Cheatum is a
public figure of any kind. But either of them could be come a limited
purpose public figure if he or she enters into the public controversy
regarding the divorce litigation.
b) A public official or public figure plaintiff must prove that the defendant published the
defamatory statement with “actual malice.”
i. Actual Malice means that the defendant published the defamatory statement
with either:
1. Knowledge of its falsity, or
2. Reckless disregard of its truth or falsity.
ii. Actual malice is a subjective standard. The defendant must have had a high
degree of awareness of the probably falsity of the defamatory statement. This
means that the defendant must have in fact entertained serious doubts that the
defamatory statement was true.
iii. Negligence or even a high degree of negligence by the defendant Is not actual
malice.
1. Failure to investigate is not actual malice
Example: Nellie Nose, a newspaper reporter, sees Senator Hound

enter a hotel with a young woman who Nose knows is not Hound’s
wife. Nose publishes an article in the newspaper stating that Senator
Hound is involved in an adulterous affair. If Nellie Nose had merely
inquired at the front desk, she would have learned that the young
woman really was the Senator’s cousin from out-of-town. Nellie Nose
is not liable for defamation because she was merely negligent. There
was not actual malice.
2. The failure of the newspaper to check its own records is not actual
malice.
3. Reliance by a reporter on an untrustworthy, or even anonymous, source

is not alone actual malice.
iv. Common law malice, meaning “ill will,” spite or hatred, is not actual malice.
v. The plaintiff bears the burden of proving actual malice by the very demanding
standard of clear and convincing evidence.
c) Private persons (anyone other than a public official or public figure) must prove
negligence by the defendant. The defendant cannot be negligent unless the nature of the
published statement makes substantial danger to the plaintiff’s reputation apparent.
iv. Constitutional Damage Rules
a) A private person who proves that the defendant was negligent (failed to exercise
reasonable care) in publishing a false and defamatory statement is only permitted to
recover “actual damages.” This means that a private person plaintiff who proves only
negligence must prove damage to his or her reputation by admissible evidence. No
evidence as to any specific dollar amount of damages is required.
b) A private person plaintiff who proves only negligence by the defendant cannot recover
presumed or punitive damages.
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c) A plaintiff (regardless of whether a public official, public figure or private person) who
proves actual malice by the defendant is entitled to recover both presumed and punitive
damages.
v. Constitutional Truth/Falsity Rule
a) If the defamatory statement involves a matter of public concern, then the plaintiff,
regardless of status, bears the burden of proof of the falsity of the statement.
b) A plaintiff will not be able to meet the burden of proof that the statement was
demonstrably false unless the character of the statement is such that it is capable of being
proven false. This means that there can be no liability for insults, mere opinion,
hyperbole or ridicule.
Damages
Wrongful Death and Survival
Common Law
At common law, no cause of action could be maintained for a tortiously inflicted death. Today, two kinds of reform
statutes have been enacted in virtually every jurisdiction:
Survival Statutes
These statutes provide for the survival of whatever cause(s) of action the deceased had at the time of his or
her death for injuries incurred prior to death.
i. The proper plaintiff is the estate of the deceased and any recovery is subject to the claims
of the deceased’s creditors.
ii. Damages recoverable are limited to those incurred by the decedant prior to death (loss of
earnings, medical expenses and conscious pain and suffering up to the time of death).
Death Statutes
These statutes create a new cause of action in favor of statutorily designated beneficiaries (close relatives)
who have suffered as a result of the death of the deceased.
i. Damages recovered go to the individual beneficiary (not the estate) and are not subject to
the claims of creditors.
ii. Pecuniary damages are recoverable measured by the loss of support to the beneficiaries
suffered as a result of the death of the decedent.
iii. Most states now permit the recovery of damages for the loss of companionship and
society of the deceased.
Proof of Liability Required

In both Survival and death actions it must be proven that the defendant would have been liable to the deceased if the
deceased had lived.
i. All elements of a tort claim (duty, breach of duty, causation and damages) must be proven.
ii. Any defense which would have been good against the deceased will be a good defense in a survival or
death action.
Example: In a contributory negligence jurisdiction the contributory negligence of the decedent will bar a
survival and a death action. In a comparative negligence state the amount of recover is reduced by the
proportion of the decedent’s fault.
Negligence Defenses Apply

In a wrongful death action the amount of recovery will be barred or reduced as a result of the contributory or
27
comparative negligence or assumption of the risk of the statutory beneficiary.
Example: Harold was killed as a result of an auto collision between a car driven by his wife, Lucy, in
which he was a passenger, and another auto driven by Wilson. Lucy brings a wrongful death action against
Wilson. Wilson was 70% at fault and Lucy was 30% at fault in causing the collision. In a comparative
negligence jurisdiction Lucy’s recovery is reduced by 30%
Note: The contributory or comparative fault or assumption of the risk of an heir to the decedent’s estate
does not reduce or bar the recovery by the estate in a survival action.
Compensatory Damages
Compensatory Damages for Personal Injuries
In a personal injury case the plaintiff is entitled to recover compensatory damages, awarded in a lump sum, for all
losses that have been proximately caused by the tort and all losses that will be caused in the future.
i. In a personal injury case, the plaintiff is entitled to recover compensatory damages, awarded in a lump sum,
for all losses that have been proximately caused by the tort an all losses that will be caused in the future.
a) The purpose of compensatory damages, and the touchstone for their measurement, is to put the
plaintiff in the same position as if the tort had not occurred.
b) Compensatory damages, both past and future, must be proven by the plaintiff by a preponderance
of the evidence.
Medical Expenses:
The plaintiff is entitled to recover the reasonable value of all reasonably necessary medical expenses,
including doctor and nursing bills, drugs, medical devices and prosthetics, incurred as a proximate result of
defendant’s tort.
Loss of earnings and earning capacity:

The plaintiff may recover the gross amount of any salary, wages or other earnings, including fringe
benefits, lost as a result of the tortuously inflicted injury and any loss of earnings or earning capacity in the
future.
Factors to be considered:
a. the earning capacity of the individual plaintiff;
b. the degree to which the plaintiff’s earning capacity has been diminished (this will vary according
to the individual since an injury will affect different people differently depending on their
occupation).
c. the anticipated duration of the disability and, if permanent, the life (or work-life) expectancy of the
plaintiff;
d. the amount of money which will compensate for the determined extent and duration of the
disability – this calculation should include the economic value of lost fringe benefits, pension
rights, anticipated promotions and wage increases, and other elements.
The test is what the plaintiff could have earned. Not what they would have earned.
Homemakers
Possible methods for determining the amount of loss of future earning capacity damages:
a. Jury should use its common experience in determining the economic value of the
homemaker’s services.
b. The amount shown by the evidence to have been actually incurred for a replacement for the
injured homemaker.
c. Testimony of family and friends as to the value of the lost homemaking services.
28
d. Testimony of the cost of replacing the lost homemaking services. This “substitute mother
approach divided the homemaker’s time into that spent in 4 to 16 different occupations
(cook, chauffeur, teacher, nurse, etc.) and then computes a “weekly salary.
Pain and Suffering:

The plaintiff may recover damages for all past and future physical and mental pain and suffering.
The “per diem” Argument

Plaintiff’s attorneys break down the “pain and suffering” into smaller time periods in order for the
jury to have a way of calculating the amount of money to be given to the plaintiff in compensation.
Loss of Enjoyment v. Pain and Suffering

Some courts have distinguished the loss of the ability to engage in a usual pleasant activity of life as
the loss of a positive experience rather than the infliction of a negative experience. Should a plaintiff
in an appropriate case be able to be compensated for both separately?
Loss of Consortium
Today, the vast majority of American jurisdictions permit either spouse to maintain an action for loss of
consortium due to the negligence of third persons. Only a very small number of states refuse to permit
such actions.
A necessary prerequisite to an action for loss of consortium is the existence of a valid marital relationship
at the time of the injury. The fact that the parties were cohabitating or engaged at the time of the injury is
not sufficient. The parties cannot create an action for loss of consortium by marrying after the date of
injury.
A growing minority of jurisdictions now permit a parent to recover damages for the loss of consortium of a
minor child. A few jurisdictions also allow a parent to recover for the loss of consortium of an adult child
(Most DO NOT).
Most jurisdictions characterize an action for loss of consortium as “derivative” and thus it is barred by any
defense, such as contributory negligence or assumption of the risk, available against the primary tort
victim.
Compensatory Damages for Harm to Property

Damages for harm to property are measured by one of two rules:
i. Diminished Value Rule: The plaintiff will be entitled to recover the difference between the value of the
property immediately before and immediately after the tort.
Example: Angelica negligently collides with a Lexus automobile owned by Spike and as a result Spike’s
auto is entirely destroyed. Immediately
ii. Repair Cost Rule: Alternatively, the plaintiff may recover the cost of repair of the tortiously damaged
property.
As a general rule, the plaintiff is entitled to recover the lesser of the cost of repair or the diminished value of the
property. Thus, if the cost of repair is greater than the market value, the plaintiff’s recovery will be limited to the
cost of repair.
Collateral Source Rule – very controversial

The amount of plaintiff’s recovery will not be reduced by the amount of any compensation received by the plaintiff
from any source unrelated to the defendant, such as plaintiff’s own insurance, job benefits or gifts from friends.
Example: Homer, as a result of Marge’s negligence, suffered $50,000 in medical expenses. All of these
medical expenses were paid by Homer’s own health insurer. Homer is entitled to recover the entire
$50,000 from Marge, and Marge is prohibited from introducing any evidence regarding the monies
received by Homer from a collateral source.
29
WATCH OUT!!
Approximately half of the states have enacted “tort reform” statutes limiting or abolishing the collateral
source rule for some or all tort actions. These statutes vary from state to state.
Plaintiff’s Duty to Mitigate Damages

A tort plaintiff has a duty to exercise ordinary reasonable* care to mitigate damages and will not be permitted to
recover damages for any injuries that could have been avoided by the use of reasonable care.
*Reasonableness is a jury issue
Plaintiff is also allowed to recover for all mitigation efforts – even if not successful.
Factors to be considered when determining whether plaintiff exercised reasonable diligence in caring for himself and
his injuries. These include:
i. plaintiff’s condition in relation to the risks of the proposed operation;
ii. the degree of seriousness and danger, if any involved in the operation;
iii. whether or not it would or might permanently maim or otherwise disable him;
iv. whether or not any possible alternative method of treatment is available, and if so, what the comparative
possibilities and probabilities are between it and the operation.
After considering all of the factors, the jury must decide whether or not the failure of plaintiff to undergo an
operation constituted a failure to exercise reasonable diligence in the care of his injuries.
Punitive Damages
Purpose of Punitive Damages
The purpose of punitive damages is to punish the defendant for egregious misconduct and to deter the defendant
from repeating the misconduct.
Basis of Liability
The Plaintiff must prove, by the preponderance of the evidence that the defendant acted with malice, ill will, hatred
or reckless disregard for the rights of the plaintiff.
No Right to Punitive Damages

Whether to award punitive damages and the amount of punitive damages is committed to the sole discretion of the
jury. There is no entitlement to punitive damages. The jury may consider the wealth of the defendant in
determining the amount of punitive damages.
Constitutional Limitations
The due process clause of the Fourteenth Amendment to the United States Constitution prohibits the award of
punitive damages which are excessive in amount, considering the following factors:
i. The degree of reprehensibility of defendant’s conduct;
ii. The relationship between the amount of punitive damages and the harm which resulted or was likely to
result from defendant’s conduct, and
iii. The potential civil penalties and criminal sanctions available for defendant’s conduct.
30

Torts - Outline - Professor Gard - Spring 2010

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Fall

[Cleveland-Marshall College of Law]

Owners and Occupiers Liability

Artificial Conditions on the Premises

Active conduct on the premises

Entry due to necessity or appearance of public right-of-way

Duties owed to persons on the premises

Example: Customers and prospective customers, business guests, employees, independent

b) An invitee is owed a duty of ordinary reasonable care by an owner and occupier.

Modern Trend: Abolition of Categories

Landlord and Tenant

Negligent Infliction of Emotional Distress

i. Located near the scene of the accident;

iii. Is closely related to the victim of the physical injury.

1) The negligent mishandling of the corpse of a close relative of the plaintiff; or

Note: criticized as overly harsh – if P is %1 contributorily negligent, D is not liable.

Last Clear Chance

a. General Rule: Modified Comparative Negligence

Assumption of the Risk

Express Assumption of the Risk

Implied Assumption of the Risk

a. Knowledge of the Particular Risk

i. Discretionary functions. Governmental action or inaction is a discretionary function if

4. Government Officers and Employees

a. Judges and legislators have absolute immunity from tort liability.

1. Creates a risk of great harm

2. that cannot be eliminated by the utmost care; and

3. is not a matter of common usage.

1. The degree of risk of harm to persons or property;

2. The magnitude of the harm;

3. The inevitability of some risk regardless of the amount of care exercised;

4. The ordinary or unusual nature of the activity in the community;

5. The extent to which the activity is a matter of common useage, and

6. The value of the activity as compared to risk presented.

1. Storage and use (blasting) of explosives;

Limitations on Strict Liability

2. Assumption of the risk is a defense to a strict liability action

3. Comparative negligence is a good defense.

Strict Liability: Animals

Defenses to Strict Liability

a) Intentional tort, such as battery.

b) Breach of warranty under the U.C.C.

ii. Implied Warranty of Merchantability, and

iii. Implied Warranty of Fitness for Particular Purpose.

The Negligence Products Liability Action

Example: Tom, a hitchhiker, is run over by an automobile negligently manufactured by Ford

Example: It is foreseeable that an automobile may be involved in a collision, thus the

The Strict Liability Products Liability Action

a) The product must be defective.

i. There are three ways in which a product can be defective:

a. Manufacturing defect. A product may be defective because it was not manufactured as

b. Design defect. A product may be defective because, even though it is property

c. Inadequate warning defect. A product which is properly designed and manufactured

Example: Defendant manufactures a household-cleaning product. The product will be defective

b. The probability and magnitude of potential injury;

c. The availability of safer, feasible alternatives;

d. The manufacturers ability to eliminate the unsafe character;

e. The user’s ability to avoid the danger;

f. The user’s probable awareness of the danger; and

g. The manufacturer’s ability to spread the loss.

b) The product must be unreasonably dangerous

i. A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be

Duty to Warn Action

b. There is no duty to warn of dangers which are open and obvious.