Torts OutlineMain question: Is this defendant abe to this panth for the tort at ssue?Questions- Can the P prove the eements of the cam?- Are there any amrmatve defenses to excuse the Ds conduct?Intentional Torts- Generayo Ps super senstvtes are NOT to be taken nto account uness there arefacts showng the D knew n advanceo Everybody can be abe for ntentona torts. No ackng capacty for ntentona torts.o A person s assumed to ntend the consequences of her acton if it was her purpose to bring about the consequence or if she knows with substantial certainty that it will occur anywayo Transferred ntent Intent can transfer from vctm to vctm or tort to tort- Batteryo Intento Harmfu or ohensve contact Unpermtted contact Super-senstvtes are not to be consdered uness D knows of themo Wth the Ps person Anythng connected wth the Ps person w sumce (pate, cothes, etc.)- Assauto Reasonabe apprehenson of an mmedate contact Apprehenson must be reasonabe Apprehenson =/= fear or ntmdaton Ony have to know of the contact, not be afrad of t Apparent abty creates reasonabe apprehenson Doesnt matter f t s mpossbe to do somethng, ony that the P thnks t s possbeo Ex. Pontng an unoaded gun Words aone are not enough - words dont create mmedacy Words, when couped wth conduct, can be enough Sometmes, words couped wth conduct, undo the conduct AND any reasonabe apprehensono Ex. "If you werent my best frend I woud punch you n the mouth" Battery > assaut- Fase Imprsonmento Sumcent act of restrant Threats are enough Inacton s enough f there was an understandng that D woud act for Ps benet P must be aware of the connement Length of connement doesnt matter May matter for damageso To a bounded area Freedom of movement s restrcted An area s not bounded f there s a reasonable means of escape of that the P is aware of- Intentona Incton of emotona dstresso Exsts as a faback poston to use when other tort theores wont worko Prma face case Outrageous conduct Somethng you cant be expected to dea wth Contnuous conducto Somethng normay ok, but contnung t makes t worse Typca Pso Very young chdo Ederyo Pregnant women No Ps super-senstvtes uness D knew of them Typca Dso Common carrers (screw them at every opportunty)o Innkeepers Guest mght be a dherent standard Damages Proof that P suhered severe emotona dstress Intent Reckessness can sumce Transferred ntent s unavaabe Cose reatve beng nearby mght be enough f D KNEW the reatves were thereIntentional Torts to property- Trespass to ando Act of physca nvason No need to show knowedge of crossng a property/boundary ne Propeng a physca ob|ect onto property w sumceo Land Incudes the arspace above and the subsurface beow so ong asthere s a dstance where the andowner can make reasonabe use of the spaceEx. Arne yng over snt trespass to and- Trespass to chattes and conversono Act of nvasono To persona propertyoDherence If there s damage, go wth trespass to chattes A LOT of damage, conversonCan aso ncude serous nterference wth possessory rghtsDefenses to intentional torts- ConsentoP must have the capacty to consent Those w/o capactyChd/mnorMentay mparedCoercon/forceConsent gven on bass of fraud or mstakeo Express Consent "Go ahead and do t" Look for facts reatng to mstake, fraud, or coercono Imped Consent Arses through custom and usage or through a Ps own conduct Ex. Touch footba game- Sef-defenseoA person s |usted n usng reasonable force to prevent what she reasonably believes to be an mmnent threat of force Beef must be reasonabeSef-defense requres that a reasonabe person n the Ds poston woud have beeved they were n dangerMust be both sub|ectvey and ob|ectvey reasonabe Force must be reasonabePerson may ony use the degree of force reasonaby necessary to avod the threatened harmoDeady force Use of deady force s reasonabe ony when the defender reasonaby beeves that they are facng deady force themsevesoRetreat Courts are dvded on the queston whether aretreat s requred before deady force may be used. Modern trend requres a retreat before the use of deady force UNLESS n own home- Defense of othersoA person may defend another person n the same manner and under the same condtons as the person attacked woud be entted to defend hmsef Mstaken beefs - a defender s not abe f he reasonaby beeved that another person was endangeredA reasonabe but mstaken beef s ok- Defense of propertyoA person may use reasonabe force to defend hs rea or persona property. However, deady force may never be used to protect propertyaone Dstngushng from other defenses: Not the same as sef-defense or defense of othersoHot pursut Have to be n hot pursut of a thef to use force to get property backoShopfter Same as other defense of property ssues Defense of property vs. fase mprsonment- NecesstyoA necessty s used only n con|uncton wth intentional torts to property W ony work on trespass to and, trespass to chattes, and conversonoPubc necessty - unlimited prvege to protect a ot of peope Destroyng houses to stop a re from spreadngoPrvate necessty - A quaed prvege to protect a mted number of peope Have to PAY for the damages caused Lands pane on farmers ed when t experences engne troubeCan assert the defense of necessty for the trespass to and but you st have to pay- DscpneoPrvege of dscpne Parent or teacher can use reasonabe force to dscpne a chdDefamation- C/L Prma face caseo Fase or defamatory statement A statement that n|ures the Ps reputaton Impes nformaton that s detrmenta to the P D bears the burden of provng truth Truth is a defense to a defamation claimo Of and concernng the P Ds statement must reasonaby be understood to refer to the P Must be "of and concernng" the P speccayo Pubcaton The statement must be communcated to a 3rd person 3rd person must be capabe of understandng the communcaton Pubcaton must be neggent f not ntentonao Damages Spoken (sander) P must prove speca damages Wrtten/broadcast (be) |ury may presume speca damages P can recover presumed damages n cases of sander per seStatements that mpugn Ps professon/professona repStatements accusng P of a serous crmeStatements mpyng a oathsome dseaseStatements that mpugn the chastty of a womano Defenses Truth - burden of proof s on D Absoute prvegeStatements made n |udca proceedngsStatements made by egsatve/executve omcers n ther dutesStatements b/w spousesAbsoute prvege negates everythngo Consttutona mtatons 1st amendment protects speech on matters of public concern. In cases nvovng speech on matters of pubc concern, SCOTUS added eements to prma face case FastyoP must prove that the statement was faseoProve knowedge of fasty or reckess dsregard FautoP must prove some eve of fautoPubc persons A pubc P must prove actual malice SCOTUS denes actua mace as knowedge or reckess dsregard of fastyoPrvate persons A prvate P must prove faut amountng to Fasty pus faut amountng to at east neggence Fasty + neggence DamagesoIn matters of pubc concern, a Ps must prove actua mace to recover presumed or puntve damagesInvasion of right to privacy- AppropratonoUse of Ps name or pcture for commerca advantage, without permissionoPs keness must be used for advertsng, promotona, or abeng purposes Not news, etc.- IntrusonoInterference wth a Ps secuson n a way that woud be hghy ohensveto a reasonabe person Teescope, peepng, etc.oP must be n a pace where he has an expectaton of prvacy Ex. Ceebrty swarmed by photographers on a pubc streetNo ntrusonoFaback - Intentona ncton of emotona dstress- Fase LghtoWdespread dssemnaton of nformaton that s n some way naccurate AND that woud be hghy ohensve to a reasonabe personoEx. Newspaper pubshes a fase story procamng someone a hero for rescung chdren from re- Pubc dscosure of prvate factsoWdespread dssemnaton of factually accurate nformaton that woud normay be condenta, and the disclosure of which would be highly ofensive to a reasonable person Ex. D broadcasts neghbors embarrassng dsease Fact beng broadcast must be a prvate factoNewsworthy dscosures are not actonabe Does the pubc have a rght to know?- DefensesoConsentoAbsoute and quaed prveges Ony appy to fase ght and pubc dscosureFraud- Amrmatve msrepresentatonoSence s generay not enoughoD has to actuay say somethng actonabe- FautoScienter must be shownoFraud s an ntentona cause of actonoMust be an ntent to defraud - have to know that what they are sayng s fase- Intenton to Induce reanceoStatement must be material Must be reevant and attemptng to get you to buy somethng, etc.- Actua and |ustabe reanceoIt s normay |ustabe to rey on the opnon of one who has superor sk or knowedge n the sub|ect matter of the transacton- DamagesoFraud s a "no harm no fou" cause of acton- Fraud vs. Neggent msrepresentatonoLabty for neggent msrepresentaton s normay conned to commerca transactons/busnessoLabty for fraud s normay conned to partcuar panths whose reance s contempatedIntentional interference with business relations- Inducng breach of contractoAn ntentona acton that causes a 3rd person to breach an exstng contract wth the P- Interference wth contractua reatonsoA D may be abe f nterference wth a Ps contractua reatons makes performance more dmcut, even f the nterference doesnt cause a breach- Interference wth prospectve economc advantageoA D may be abe for nterferng wth a Ps expectaton of economc benet from 3rd persons, even in the absence of a contractoHard to proveoLaw gves some attude here to protect busness rongful institution of legal proceedings- Macous ProsecutonoCrmna/cv proceedngs brought w/o probabe cause, or brought wth an mproper purpose- Abuse of processoUsng any form of ega process wth an mproper purpose!egligence- Duty, Breach, Actua Causaton/Proxmate Cause, Damages- Dutyo To whom s a duty owedo Owe a duty to a peope who are foreseeable victims of your faure to take precautons Foreseeabe as a matter of aw Rescuers/engaged n a rescue operaton Vabe fetuses - even f D has no knowedge of pregnancyo "Pondexter rue" Must exercse the amount of care that woud be taken by a reasonaby prudent person under the same or smar crcumstances Ths s NOT knd to D D expected to use any superor sk or expertse for Ps benet f they have t Ds physca dsabtes are attrbuted to the reasonaby prudent persono Ex. Reasonaby prudent person n a wheechar Reasonaby prudent person s a xed constant n neggence aw Is a motorst expected to use extreme care whe drvng n a bzzard?o No - reasonabe person standard never changes: what woud a reasonabe person do n those crcumstances?o Speca duty standards Chdren Ma|orty Rueo Chd must exercse the degree of care that a reasonabe chd of ke age, ntegence, and experence woud exercse Mnorty rue: Rue of sevenso Under 7 Incapabe of neggenceo 7 to 13 Rebuttabe presumpton that they are ncapabe of neggence P has to proveo Over 14 Rebuttabe presumpton that they are ncapabe of neggence D has to prove they are NOT capabe of neggence Adut actvteso A chd engaged n an adut actvty (ex. Drvng) s hed to the adut standard for that actvty Professonas A professona s requred to possess and exercse the knowedge and sk of an ordnary member of that professon n good standng Common fact patternso Medca mapractce Informed consent: Must te the patent the rsks/etc. of surgery Dr. needs consent to avod battery Needs nformed consent to avod neggenceo Lega mapractce P must prove causaton That the P woud have won f t wasnt for the awyers actvty/nactvty Owners/Occupers of and Source of the n|uryo Dd the n|ury resut from the conduct of activity or dd the n|ury resut from an encounter with a staticcondition Status of the Po Undscovered trespasser No dutyo Dscovered trespasser Conduct of actvty Reasonabe care Statc condton No duty for natura condtons For artca condtons owe duty to warn of or make safe known condtonsf nonobvous or hghy dangerouso Lcensee - soca guest Actvty Reasonabe Care Condton Conceaed condton known to the ownero Invtee - and hed open to the pubc at arge Actvty Reasonabe care Condton Conceaed condton known to the owner or shoud have known about - duty to nspect For a statc condton, a and possessor can satsfy obgaton by:o Gong to condton and make t safe ORo Gve a warnng If a queston nvoves a chd trespasser, use the reasonabe person standardo Attractve nusance doctrne If an entrant s n|ured by an open and obvious condition the entrant w be requred to protect themseves Modern trend: Strong mnorty of states have aboshed the dstncton b/w censees and nvtees o Speca stuatons Statutory standard of care Neggence per seo Class of person, Class of risk P must be wthn the cass of person the statute s desgned to protect Rsk must be wthn the rsk the statute s desgned to protecto Exceptons Compance wth the statute s more dangerous than voatng the statute Compance s mpossbe under the crcumstances Court w excuse statutory voaton and requre use of norma neggence Amrmatve duty to act rueo There s no duty to rescue Doctor doesnt owe a duty to treat an n|uredpersono Exceptons D put the P n per If D put the P n per they DO have a duty to act Reatonshps Cose famy reatonshps trgger a duty to act Common-carrers/nnkeepers have a duty to act/rescue Invtee-nvtor reatonshp/store owner-customer reatonshp Duty to contro 3rd persons D must have actua abty and authorty to contro o Ex. Mom sees todder run towards a shopper n the grocery store Neggent Incton of Emotona dstresso Super dmcut to proveo Genera rue s no duty - no nvestment requred to prevent damage to someones psycheo Exceptons Zone of danger rue If the D exposes you to physca rsk and you ater suher emotona/physcaexpressons of your dstress There has to be physca manfestatons from the emotona dstresso Ex. Hves, heart paptatons, etc Bystander recovery Bystander at the scene that has a reatonshp wth the vctm St must be a physca manfestaton of dstresso Speca stuatons Courts w beraze rues where a Ds neggence creates a great kehood of severe emotona dstress Fase death report, funeras, etc.!egligence " Duty # breach # causation # damagesDuty- P must pont to specc conducto Specc conduct that voates the requste duty standard- Provng specc conducto Evdence of custom s aways admssbe and never concusve Everyone or no one foows the dutyo Res psa oqutur Used by desperate Ps who dont know what happened P has to prove two thngs Event was one that does not normay occur wthout neggence Any neggence that exsted woud be attrbutabe to the D Consequence - P gets ther cam to the |ury - they dont auto wn$ausation- Cause n facto "But for" test - A Ds conduct s the cause n fact of an n|ury when the n|ury woud not have occurred Woud t have occurred but for the Ps conduct?o Aternatve tests Substanta factor test Use n cases wth mutpe Ds and a comnged causeo Ex. A and B neggenty ght res. Fres burn separatey but then combne to burn down Ps house But for wont work so use substanta factor test Burden shftng - use n cases wth mutpe Ds wth an unknown cause Ex. M and L shoot at a brd. Pece of brd shot ends up n Cs eye. No one can te whch shot ht C. "but for" wont work, so we shft the burden of proof to the Ds.- Proxmate Causeo Proxmate cause acts to mt the Ds abty. A person s ony abe for those harms that are wthn the rsk of hs actvty Drect cause If the resut of the Ds neggent conduct s foreseeabe, D w be abeo Err on sde of ndng for the P Indrect cause Foreseeabe resuto Foreseeabe ntervenng cause P wns/D abeo Unforeseeabe ntervenng cause Uncertan Unforeseeabe resuto Foreseeabe ntervenng cause uncertano Unforeseeabe ntervenng cause P oses/D not abe Intervenng cause w amost never cut oh abty:o Subsequent medca mapractce s consdered foreseeabe Ex. Drver neggenty hts pedestran and breaks hs eg, Pedestran s rushed to hospta where a doctor sets hs eg mpropery causng an nfecton Is D neggence the proxmate cause ofpedestrans nfecton? YESo Neggent Rescue s consdered foreseeabe Ex. Neggent drver hts pedestran and breaks hs eg. Rescuer attempts to drag Pedestran out of harms way, but nstead drags them nto further harm. Is Drvers neggence the proxmate cause of Pedestrans further harm? Yeso Reacton forces D neggence causes crowd to ee from the scene. Feeng crowd member knocks over P breakng hs arm. Is Ds neggence the proxmate cause of Ps broken arm? Yeso Subsequent dseases or accdents Ex. Neggent Drver ths pedestran and breaks hs eg. Pedestran s rushed to hospta where eg s set propery. That nght,Pedestran sps oh hs crutches whe cmbng stars and breaks hs arm. Is Drver neggence the proxmate cause of the broken arm? Yes Cases n whch an ntervenng cause will not cut oh abty IF D can antcpate the ntervenng cause - Can the D antcpate them?o Neggence of a 3rd party f foreseeabe Ex. D neggenty bocks the sdewak, forcngPedestran to wak n the street. Speedng Motorst hts Pedestran. Is Ds neggent the proxmate cause of the n|ures? Woud D be abe to antcpate? Yeso Crmna conduct f foreseeabe Ex. Parkng garage owner neggenty fas to keep secure ock on the door. Crmna attacks patron n garage. Patron sues GarageOwner. Is Garage owners neggence the proxmate cause of patrons n|ures? Yes, D woud be abe to antcpateo Acts of god f foreseeabe Ex. Workman eaves materas on roof despte predctons of a wndstorm. Wndstorm arrves and bows materas oh rood. Fang materas ht pedestran. Is Workmans faure to remove the materas the proxmate cause of the n|ury? Yes, t was foreseeabeDamages- A P must prove damages as part of the prma face neggence case. Eements of a typca persona n|ury award are:o Past and future medca expenseso Lost ncomeo Pan and suherng- Eggshe P rueo A D s abe for the fu extent of the damage he causes, even f the extent was unforeseeabeDefenses to negligence% Contrbutory neggenceo A Ps faure to use the reevant degree of care for hs or her own safetyo If the P s contrbutory neggent t s a compete bar to recoveryo Ameoratng If D had the "ast cear chance to avod" the harm% Assumpton of rsko Express assumpton of the rsk "I take my chances" Consequence: bar recovery Exceptons Patent sgns form assumng the rsk of neggent medca treatmento Bar to recovery? No - ths voates pubc pocy Sker sgns form assumng the rsk of neggenty groomedsopes?o No bar to recovery - can assume the rsk n a recreatona contracto Imped assumpton of the rsk Vountary + knowng Absence of an aternatve destroys vountarness Emergency stuatons destroy vountarness Consequences Absoute bar to dscovery% Comparatve Neggence (Modern)o Pure comparatve neggence - P gets proportona recoveryo Moded Comparatve neggence - bar recovery f P goes over 49% at fauto Appcaton P 70% at faut D 30% at faut Pure comparatve neggenceo P recovers 30% Moded comparatve neggenceo P recovers nothng Where t exsts, comparatve neggence suppants a other amrmatve defenses except express assumpton of the rsk&trict 'iability- Anmaso Trespassng anmas - SL for foreseeabe harm caused by anmas (other than household pets)o Persona n|ury Domestcated anmas No SL unless you know of the anmas propensty for ferocousness Wd anmas SL from the get go uness P does somethng stupd- Abnormay dangerous actvteso Attrbutes The actvty s ncapabe of beng conducted except wth hgh rsk Bascay, t cant be made safe Actvty must be uncommon to the communty If harm occurs, t s key to be severeo Lmtaton The harm st must be wthn the rsk Must be proxmate cause- Product reated n|ureso Prma face case D must be a merchant of the type of goods nvoved In order for SL to attach, seer has to be a merchant of that type Product must be defectve Manufacturng defecto The product s an anomay, and the dherence b/w the product n hand and a other s the very dherence that caused the harm Desgn defecto A probem that s common to each unt that the seer coud have emnated through a reasonabe aternatve desgn Defect must have exsted when t eft the seers hands Presumpton that the defect exsted f the product moves n the ordnary channes of transportaton/commerce P made a foreseeabe use of the pro|ecto Defenses Tradtona |ursdcton In tradtona |ursdctons, conduct that s the equvaent of contrbutory neggence w not bar recovery; conduct that s the equvaent of assumpton of the rsk w bar recoveryo Ex. P reads a rdng awnmower manua, ncudng an nstructon to warm up the mower. P gnores the nstructon and s thrown from hs seat. Does awnmower manufacturer have a good defense to Ps SL cam? Yes P knewo Ex. P gnores the manua and s ater thrown from hs seat. Does manufacturer have a good defense to Ps SL cam? No Comparatve faut |ursdcton Ma|orty of comparatve faut |ursdctons now appy comparatve faut prncpes n SL abty cases When the theory beng reed on s neggence, et whoesaers/retaers oh the hook An adequate warnng w usuay nsuate a D from SL When a queston refers to a feasbe aternatve for makng a product safer, t often sgnas that you shoud ook for desgn defect. Desgn Defect w probaby gnore a warnngo Foreseeabe use s not the same as ntended use Ex. P uses a char as a stepadder - foreseeabe? Yes Ex. P uses a power saw as denta oss - foreseeabe? No Dont be fooed by addtona partes A that matters for products abty SL s foreseeabtyo Incdenta to performance of a servce If product use s ncdenta to the performance of a servce, then SL s unavaabe- Prvate Nusanceo Conduct that causes a substantial and unreasonable interference with the use and enoyment of land Substanta and unreasonabe nterference Has to be BOTHo Remedes: Courts w wegh the equtes of the partes n decdng whether to en|on a Ds actvty- Pubc Nusanceo Conduct that causes physca or mora harm to the pubc n genera A prvate P can mantan a pubc nusance acton f they suher an n|ury greater than the pubc @ arge(eneral $onsiderations- Vcarous abtyo Empoyer-empoyee Empoyer s vcarousy abe for empoyees torts commtted within the scope of employment Froc and detour rues Ex. Truck drver gets nto an accdent whe headng to a dner that s two mes oh route. Is Truck Drvers empoyervcarousy abe for hs conduct? o Mnor detour st wthn scope Ex. Truck drver gets nto an accdent whe n Las Vegas. Is the empoyer vcarousy abe for hs conduct?o No - on a froc of hs own Intentona torts An empoyer s not liable for employees! intentional tortso Ex. Mnor eague baseba ptcher purposefuy throws a ba at a spectator - s cub owner vcarousy abe? No - not for ntentona tortso W extend f voence s part of the |ob - bouncer, etc. Compare wth ndependent contractorso Generay - no vcarous abtyo Excepton - ndependent contractor s engaged n an nherenty dangerous actvtyo Excepton - Pubc pocy - depends on state Automobe owner-drver Generay no vcarous abtyo Excepton - when drver s performng an errand forthe owner, abty may be premsed on agency prncpes Mnorty rueso Famy car states - Owner s vcarousy abe for the torts f drvng w/ owners permsson AND vngn same househodo Permssve use states - Owner s vcarousy abe for the torts of anyone usng the car wth permssono Parent-chd - No vcarous abtyo Look for drect abty rst Ex. |oe gves keys to drunk frend. Drunk frend gets nto an accdent and n|ures P. Is |oe vcarousy abe to P? No - drecty abe- Ad|ustment of rghts between mutpe Dso |ont and severa abty Each D can be abe to P for the entre damage ncurred Concert of actono Ex. Tom and Randy drag race down Man Street. Tom hts Ps car, P can sue both of them because they are actng n concert Indvsbe harmo Snge but ndvsbe harm Ex. R and C both neggenty drve nto an ntersecton and code. T, a passenger n Rs car s n|ured, T can sue them botho Indemnty Passve D receves full reimbursement from actve Do Contrbuton Tradtona Payng D recovers proportional shares from other Ds Comparatve contrbuton Recovery s based on the relative fault of each tortfeasor- Wrongfu Death and Survva Actonso Wrongfu death or survva actons are not separate causes of acton. They appy to tort actons when the tort resuts n the vctms death Wrongfu death actons: Wrongfu death actons are awsuts brought by a decedents benecares for ther own oss of support and companonshp Survva actons: Survva actons are awsuts brought by a decedents estate based on cams that deceased coud have brought Cams vested n estate and sub|ect to defenses - Immunty o Famy mmunty Famy members sung each other - ma|orty says noo Governmenta mmunty Genera rue s mmunty There s no mmunty when the government s engaged n a "propretary functon" Actng ke a prvate ctzen woud Government retans ths mmunty when engagng n poce, re, army, etc.o Chartabe mmunty Been aboshed n most |ursdctonsTennessee Prma face case ntentona torts to the person- IIEDo Ds conduct need not be drected at a specc person to be actonabe n TNPrma face case ntentona torts to property-Trespass to andoNeggent cuttng of tmber resuts n damages equa to doube the market vaueoIntentona cuttng s trebe Defenses to ntentona torts- Foows ma|orty rue, permttng the use of force to defend a 3rd person whenever the actor reasonaby beeves the aded person woud have the rght of sef-defensePrvege of arrest- Mstakeo A poce omcer can, w/o a warrant, arrest a person for: Pubc ohense commtted or breach of the peace threatened n the omcers presence When the person has commtted a feony, athough not n the omcers presence When a feony has n fact been commtted, and the omcer has reasonabe cause for beevng the arrestee has commtted t On a charge made upon reasonabe cause of the commsson of a feony by the arrested person- A prvate ctzen can arrest for smar reasons- Amount of force aowedo An omcer cannot use deady force f other reasonabe means of apprehenson are avaabe Warnng must be gven f feasbe Omcer must have probabe cause to beeve the arrestee has ncted or threatened serous body harm- Shopftng detentono Merchant who has reasonabe cause to beeve that a person s shopftng can detan the suspect for a reasonabe tme usng reasonabe force)arm to economic and dignitary interests- Defamatono Ps must prove actua n|ury uness consttutona mace s shown "actua mace"o Prvate persons do not have to prove actua maceo Mtgatng factors Newspapers and perodcas that prnt a requested retracton n good fath escape abty for puntve damages TV and rado statons avod abty for defamatory statement made by nonempoyees f they show they exercsed due care- Invason of rght to prvacyo Appropraton of Ps pcture or name TN courts characterze the rght of commerca appropraton of pcture/name as a separate and ndependent rght of pubcty Can be brought by descendants Represents a property rght o Fase Lght Is an actonabe torto 1 st amendment mtatons Fase ght actons nvovng pubc concern or brought by a pubc omca/gure actua mace must be shown Prvate ndvdua/prvate concern, P must show that the pubsher was neggent n pacng the D n a fase ght o Msrepresentatons Intentona msrepresentaton Fraud/decet - cause of acton exsts f make a promse wth ntent to renege Neggent msrepresentaton Appes to professonas/busnesses that specaze n provdng nfo but aso to those that suppy mseadng nformaton for use n busness transactonso Interference wth busness reatons One who nduces another to breach a vad K s abe to the nnocent contractng party for trebe damageso Wrongfu nsttuton of ega proceedngs Macous prosecuton Issue of PC s for the |uryo Retaatory dscharge Can sue f red for whstebowng/refusng to do ega thngs Fred empoyee can recover even f empoyer says no whstebowngo Consumer fraud Consumer protecton act Money damages for anyone who suhers oss of money or property as a resut of any "unfar or deceptve practce" Court can have trebe damages f t nds the Ds act was a wfu or knowng wrong- Neggenceo Who s a duty owed? Parent who becomes pregnant after an nehectve sterzaton cannot recover expenses of rasng the chdo Standards of conduct Medca mapractce based on oca standards of careo Duty to dscose rsks of treatment Medca treatment wthout nformed consent can be batteryo Chdren TN appes rebuttabe presumpton that a chd between 7-14 s ncapabe of neggence Presumpton s not concusve and may be rebutted by evdence of capacty for neggence - Dutes owed by baeeo Proof that property was devered to baee n good condton and was returned n damaged condton consttutes prma face evdence of neggence- Premses abtyo Obvousness of danger The fact that danger s open or obvous does not automatcay reeve D of a duty of care If the foreseeabty and gravty of the harm posed from the Ds conduct, even f open and obvous to the P, outweghed burden on the D to engage n aternatve conduct to avod the harm, there s a duty to act wth reasonabe care Compare foreseeabty and gravty of harm vs. burden on D to xo Users of recreatona and Smar to mutstate Statute does not appy f andowner acted wfuy or wth gross neggence, or charged a fee to use the ando Status rues No dherence b/w nvtees and censees Duty to exercse ordnary care under the crcumstances May requre owner of a busness to provde securty f crmna acts are foreseeabe- NEIDo No need for physca symptoms Serous emotona n|ury where a reasonabe person woud be unabe to adequatey cope Must be supported by expert medca/scentc proof If ntentona, no need for medca proofo Bystander cases Foreseeabty test for recovery n bystander cases Estabshng foreseeabtyo Whether the P was n sumcent proxmty to the n|ury-producng event to aow her to observe to Whether the n|ury to the 3rd person was or was reasonaby perceved to be, serous or fata ando Whether the P was n sumcenty cose reatonshp to the n|ured 3rd persono Amrmatve duty to act Good Samartan statute exempts a persons who vountary render emergency treatment from abty for ordnary neggence*reach of duty- Res psao Avaabe n medca mapractce even f expert testmony s necessary to prove causatonDamages- Puntveso If puntves are sought needs to be a bfurcated tra Proper f: D acted ntentonay Frauduenty Macousy Reckessyo Frst part of tra |ury has to decde whether puntves are propero Second part of tra |ury determnes amount- Damage capso Noneconomc damages capped at 750,000 Cap doesnt appy f the tortfeasor acted neggenty or under the nuence of acoho or drugso 1 mon f n|ury s catastrophco Puntves capped at twce compensatory damages, or 500k whatever greater- Comparatve neggenceo No contrbutory neggenceo Moded comparatve faut P can recover up to 49/51- Mutpe Dso Mutpe Ds can be combned to reach 51% threshod Court can aocate faut to nonpartes that arent part of the suto Certan tortfeasors excuded from faut determnaton Empoyers mmune from abty under workers comp Empoyers neggence not ncuded when apportonng faut by empoyee aganst 3rd party Intentona tortfeasor when D had duty to contro Where Ds neggent conduct nvoved the creaton of a foreseeabe rsk that another woud commt an ntentonatort o Nonparty ntentona tortfeasors conduct w not beconsdered &trict liability- Anmaso Dog n|urng vestock creates SL for owner+roducts liability- W cover eases and saes warrantes- Inadequate warnngso Manufacturer can be hed abe for faure to warn If an ntermedary can be expected to convey a warnng, manufacturer s absoved- Provng a defecto Product can be defectve f ether Defectve condton OR Unreasonaby dangerous Consumer expectatons test ando Product consdered defectve f a reasonabe consumer woud nd t defectve Non-compex products Reasonabe manufacturer testo Govt safety standards Product manufactured accordng to government standards s presumed to not be unreasonaby dangerous o No requrement for contractua prvty b/w P and D- Statutory defenseso Repose A cause of acton not commenced wthn 10 years of nta sae s extngushed If expraton date - must be brought wthn 1 year of expraton- Strct abtyo Ony avaabe aganst the manufacturer, not other seers uness Manufacturer exercsed substanta contro over that aspect of desgn, testng, manufacture, packagng, or abeng of the product that caused the aeged harm