Torts II Outline

I. RESPONDEAT SUPERIOR
“Let the master answer”

General Rule: The master is vicariously liable for the torts of his servant committed
within the scope of the employment.

Master

Servant

Independent
Contractor

Analytical Framework
1) Is tortfeasor a servant or Independent Contractor?
2) If a servant, were the actions giving rise to the tort within the servant’s “scope of
employment?”

SERVANT OR INDEPENDENT CONTRACTOR

Servant Indep. Contractor

Master remains right to control Paper Boy (Miami Herald)
performance (R of A §220)
Apparent Authority (R of A § 265) Collateral Negligence (Wilton)
Non-Delegable Duties (Yazoo & Rest 2d §
416)
Services Thought to be Rendered by
Master (Rest §429)

“SCOPE OF EMPLOYMENT”
YES:
Drunken Mischief Related to Seafearing (Bushey)
Commuting with Specific Route (Konradi)
Bus Driver Angered by Slow Driving (Forster)
NO:
Making a Personal Bank Deposit (Miller)
Bank Teller Tipping Off Robbers (Roth)
Bus Driver Angered by the Finger (Renia)
Frolic & Detour (Miller v. Reiman-Wuerth)
Commuting

Vicarious Liability – liability for one party based on the wrongs of another

Respondeat Superior:
1) п more likely to recover
2) No need to show that agent was chosen or supervised negligently

A. INDEPENDENT CONTRACTOR

1. Less control may avoid liability

Miami Herald Publishing Co. v. Kendall (NL)

Facts: Paperboy was delivering papers when he ran over п with his motorcycle. П
sued newspaper for damages.
Rule: An employer is not liable for the torts of an independent contractor when it
does not exert control over the actions causing the tort.
Rationale: The court reviewed the nature of the relationship of the paper with their
newsboys. It was found that the paperboy was an independent contractor rather than
an employee. As a result, the court looked into the terms of the contract. The paper
limited its exertion of control to the result of performance and not the manner of
performance. As a result, this allowed the paperboy to choose his means of
conveyance. Therefore, the paper was not liable for the injury.
Holding: Judgement for п reversed.

2. Collateral negligence prevents liability

Wilton v. City of Spokane (NL)

Facts: ∆ hired a partnership to build a street. They encountered a ledge of rock and
used dynamite to remove it. A piece of dynamite was left unexploded and paved
over. Another firm installing electric poles came behind them. Their drilling caused
the dynamite to explode causing the workers various injuries.
Rule: An employer is not liable when injury is caused by something collateral to
the contract work, and entirely the result of negligence or wrongful acts of the
contractor/servants. Such risk is not inherent or foreseeable in the general activity of
the task..
Rationale: Normally the work of blasting rock in an inhabited portion of a city is
forbidden to be let to the work of an independent contractor. However, leaving
unexploded dynamite is not part of the work of blasting rock. This is an act of
negligence and nothing else. In such a case, the actor immediately responsible for
the injury is liable.
 Holding: For ∆.

B. SERVANT

§ 220. Definition of Servant (Rest 2d Agency)

(1) A servant is a person employed to perform services in the affairs of another and
who with respect to the physical conduct in the performance of the services is
subject to the other's control or right to control.
(2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the
details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and
servant; and
(j) whether the principal is or is not in business.

Comment on Subsection (1):

a. Servants not performing manual labor. The word "servant" does not exclusively
connote a person rendering manual labor, but one who performs continuous service
for another and who, as to his physical movements, is subject to the control or to the
right to control of the other as to the manner of performing the service. The word
indicates the closeness of the relation between the one giving and the one receiving
the service rather than the nature of the service or the importance of the one giving
it. Thus, ship captains and managers of great corporations are normally superior
servants, differing only in the dignity and importance of their positions from those
working under them. The rules for determining the liability of the employer for the
conduct of both superior servants and the humblest employees are the same; the
application differs with the extent and nature of their duties.
h. Factors indicating the relation of master and servant. The relation of master and
servant is indicated by the following factors: an agreement for close supervision or
de facto close supervision of the servant's work; work which does not require the
services of one highly educated or skilled; the supplying of tools by the employer;
payment by hour or month; employment over a considerable period of time with
regular hours; full time employment by one employer; employment in a specific
area or over a fixed route; the fact that the work is part of the regular business of the
 employer; the fact that the community regards those doing such work as servants;
the belief by the parties that there is a master and servant relation; an agreement that
the work cannot be delegated.

Illustrations:
5. P employs A to drive him around town in A's automobile at $4.00 per hour. The
inference is that A is not P's servant. If P supplies the automobile, the inference is
that A is P's servant for whose conduct within the scope of employment P is
responsible.
11. A is employed by P as resident cook for his household under an agreement in
which P promises that he will in no way interfere with A's conduct in preparing the
food. A is P's servant.

§ 265. General Rule (Rest 2d Agency)

(1) A master or other principal is subject to liability for torts which result from
reliance upon, or belief in, statements or other conduct within an agent's apparent
authority.
(2) Unless there has been reliance, the principal is not liable in tort for conduct of a
servant or other agent merely because it is within his apparent authority or apparent
scope of employment.

Illustrations:
1. P discharges A, his foreman, who regularly directs those under him where to cut
timber. Before the employees have been told of A's discharge, he tells them to cut
trees on B's land, which they do. P is liable for the trespass.
2. P discharges A, his advertising manager and spokesman, known to be such by all
local newspaper reporters. The following day, before anyone learns of his
discharge, for the purpose of harming both P and T, A states to the reporter that T
has been defrauding P, causing P great losses. P is liable to T for the defamatory
statement.
3. P permits A to appear as his servant and A is generally known as such. While A
is driving upon his own affairs but ostensibly upon P's affairs, he negligently runs
over T, who believes A to be P's servant. P is not thereby liable to T.

§ 416. Work Dangerous In Absence of Special Precautions

One who employs an independent contractor to do work which the employer should
recognize as likely to create during its progress a peculiar risk of physical harm to
others unless special precautions are taken, is subject to liability for physical harm
caused to them by the failure of the contractor to exercise reasonable care to take
such precautions, even though the employer has provided for such precautions in
the contract or otherwise.

Comment d: In order for the rule stated in this Section to apply, it is not essential
that the work which the contractor is employed to do be in itself an extra-hazardous
 or abnormally dangerous activity, or that it involve a very high degree of risk to
those in the vicinity. It is sufficient that it is likely to involve a peculiar risk of
physical harm unless special precautions are taken, even though the risk is not
abnormally great. A "peculiar risk" is a risk differing from the common risks to
which persons in general are commonly subjected by the ordinary forms of
negligence which are usual in the community. It must involve some special hazard
resulting from the nature of the work done, which calls for special precautions. (See
§ 413, Comment b.) Thus if a contractor is employed to transport the employer's
goods by truck over the public highway, the employer is not liable for the
contractor's failure to inspect the brakes on his truck, or for his driving in excess of
the speed limit, because the risk is in no way a peculiar one, and only an ordinary
precaution is called for. But if the contractor is employed to transport giant logs
weighing several tons over the highway, the employer will be subject to liability for
the contractor's failure to take special precautions to anchor them on his trucks.

1. Liability for non-delegable duties.

Yazoo & Mississippi Valley Railroad Co. v. Gordon (L)

Facts: Railroad hired independent contractor to unload cattle, store them, and
transfer them to another train. A steer escaped and gored п.
Rule: An employer may not avoid responsibility for a duty it owes to the public at
large.
Rationale: The railroad owed a duty to the public to prevent the steer from being at
large. Under the circumstances, this was not a duty that it could delegate to others
and escape liability.
Holding: For п.

§ 429. Negligence in Doing Work Which Is Accepted In Reliance on the Employer's

Doing the Work Himself

One who employs an independent contractor to perform services for another which
are accepted in the reasonable belief that the services are being rendered by the
employer or by his servants, is subject to liability for physical harm caused by the
negligence of the contractor in supplying such services, to the same extent as
though the employer were supplying them himself or by his servants.

Illustrations:
2. A's wife faints. He hails a taxicab, which is so labeled as to indicate that it is
operated by the B Taxicab Company, although the arrangement between the taxicab
company and the driver is such as to make the driver an independent contractor. A
puts his wife in the cab and accompanies her home. Through the careless driving of
the taxicab driver a collision occurs in which A and his wife are hurt, as is also C,
the driver of another car. The rule stated in this Section subjects the B Company to
liability to A and his wife but not to C.

C. SCOPE OF EMPLOYMENT
1. YES

a. Employer Liability during normal course of duties

Ira. S. Bushey & Sons v. United States (L)

Facts: Drydock owner sued for damages caused by drunken seaman. Seaman
returned to ship drunk and turned valves on drydock wall causing flooding of tanks.
This in turn caused the ship under repair to slide off its docks and hit the wall. Part
of the drydock sank along with the ship. (partially) The trial court found for п.
Rule: An employer may be held liable for the actions of its employee acting in the
normal course of his duties.
Rationale: While the act of turning the valves was not within the seaman’s scope of
duty, the court found that the seaman’s behavior was foreseeable. It was enough to
convince the court that it is within the nature of seamen that some damage would
occur to the drydock. As a result, it was reasonable to hold the US liable for the
damage caused here.
Holding: Judgement for п affirmed.

b. Liability when employer exerts control over activities

Konradi v. United States (L)

Facts: Postal employee collided with another car killing the driver on his way to
work. He was a rural mail carrier. The deceased’s estate sued for wrongful death.
Rule: An employer can be held liable for an employee’s collision where the
employer controls the manner and method of an employees commute to and from
work.
Rationale: (Posner) Normally, an employer is not liable for employee collisions
when driving to and from work. However, liability may be found when the
employer regulates the method and manner of travel. Here, the Postal service
required its employee to use his personal vehicle, the employee’s route to and from
work, and other specifics. Since the employer regulated the route, which may not be
the safest, it could be held liable for accidents that result from this directive.
Holding: SJ for ∆ reversed.

c. Torts committed within the scope of employment

Forster v. Red Top Sedan Service (L)

Facts: пs were driving to the airport when a bus operated by the ∆ tried to run them
off the road. The bus driver then pulled in front of them and stopped. The driver
proceeded to the car and then opened the door. He then verbally and physically
assaulted the пs stating that no “old bastard” would delay his schedule and “delay
him from getting to the beach”. Пs sued the driver’s employer.
Rule: An employer may be held liable for the torts of an employee acting in the
scope of his duties.
Rationale: None offered.
 Holding: Judgment for ∆ reversed.

2. NO

a. No liability when outside scope of employment

Miller v. Reiman-Wuerth Co. (NL)

Facts: Construction worker was injured when he left work to deposit a paycheck.
The trip was authorized by his employer. He used his own car to make the trip. On
the way back to work he was involved in a collision with the пs.
Rule: An employer is not liable for torts committed by an employee acting outside
of his scope of employment. (frolic and detour)
Rationale: The court considered the arguments that (1) the appellee (Reiman)
benefited from Miller’s trip, (2) exercised control over the trip by requiring him to
return immediately, and (3) that the previous two items were for a jury to determine
if they established that the trip was within the scope of employment. The court
reasoned that to find that the trip was within the scope of employment, this ruling
would apply to vacations from work and weekends as well.
Holding: SJ for ∆ affirmed.

b. Criminal activity on the job that is outside scope of employment

Roth v. First Natl. State Bank of New Jersey (NL)

Facts: Bank employee provided information to boyfriend that helped him plan a
robbery. The employee observed that a patron would withdraw a large sum of cash
on a regular basis. The boyfriend used this information to plan when to be at the
bank to rob the patron. The patron learned of this and sued the bank. The victim
sued the bank to recover his losses.
Rule: An employer is not liable for torts committed by an employee while acting in
pursuit of his own ends, and outside the scope of employment.
Rationale: The court reasoned that the employee’s actions were not within the
scope of employment. While she may have been working at the time, her actions
were a matter of observation on her part and not within the scope of her
employment.
Holding: Judgement for ∆ affirmed.

c. Torts committed outside the scope of employment

Reina v. Metropolitan Dade County (NL)

Facts: п was passenger on ∆’s bus. П and driver got into dispute over the correct
fare. Driver failed to stop when requested by п, and later let him off. П then made
an obscene gesture. Driver then chased him down and beat him. П sued employer.
Rule: An employer is not liable for torts committed by its employee acting outside
the scope of his duties.
 Rationale: The court found it possible that the п’s could prove that the driver’s
conduct was consistent with his scope of employment. His actions were motivated
by a desire to serve his employment.
Holding: Judgement for ∆ affirmed.

II. CAUSE IN FACT

Cause in Fact – a cause without which the event could not have occurred. Actual or but-
for causation asks the question: Did the defendant’s negligent conduct cause the
plaintiff’s harm? But for the negligent conduct of the defendant, the plaintiff’s harm
would not have occurred. We don’t want defendants to be negligent; however, we won’t
hold them liable if the harm would have happened either way. If the accident would have
happened even in the absence of the defendant’s negligence, then the defendant is off the
hook. In some sense, the defendant caused the accident, but it’s not their negligence that
caused the accident. Just because someone caused something doesn’t mean that it’s their
fault. On the other hand, we may hold some defendants liable if their negligence
significantly increases a risk.

Proximate Cause – “A cause that is legally sufficient to result in liability; an act or

omission that is considered in law to result in a consequence, so that liability can be
imposed on the actor.” – Black’s Law

Where do you draw the line on causation?

A. BUT FOR CAUSATION

The injuries would not have occurred if the ∆ had used due care.

1. If cause cannot be established, no liability

New York Central R.R. v. Grimstad (NL)

Facts: Cpt. of barge fell overboard when tugboat bumped the barge on which he
was standing. He could not swim. The barge did not have a life preserver. His wife
saw him in the water and went in the cabin to get a line. However, he had drowned
before she got back.
Rule: If a п cannot show that ∆’s failure to act/prepare was the cause of the injury,
then ∆ is not liable.
Rationale: The court did not find that the presence of a life preserver would have
made a difference. It was questionable if a life preserver would have been present
that he could have grabbed it and been pulled to safety.
Holding: For ∆.

2. If injury caused by neglect of duty may create liability (contributory negligence)

Gardner v. National Bulk Carriers, Inc. (L)

 Facts: Seaman fell overboard around midnight on a moonless night near the FL.
Keys. It was unknown when he fell overboard and where. The captain did not turn
around to look.
Rule: If injury is caused by ∆’s neglect of duty, the ∆ is liable.
Rationale: It was established that seamen who fall overboard often survive several
hours in the water. Here there was no risk if the ship were to turn around. The only
loss would have been time. The inaction of the master was a neglect of the duty to
rescue which was a contributing factor by law.
Holding: Holding for ∆ reversed.

Contrast to Margerita

3. Injury could not be prevented, no liability

Stacy v. Knickerbocker Ice Co. (NL)

Facts: ∆ hired horses to scrape ice off surface of lake. The horses became
frightened and ran across the ice despite efforts to control them. The horses fell
through a spot of thin ice and drowned. There were no signs or fences erected to
block the area.
Rule: If injury is not preventable by ∆, then no liability.
Rationale: The court determined that the horses were uncontrollable. As a result,
no one could have prevented them from going onto the thin ice even if it were
marked. Also, there was no rule of law requiring any rescue rigging.
Holding: Holding for ∆ affirmed.

4. If injury caused by failure to follow law, liability (Violation of statutes)

Haft v. Lone Palm Hotel (L)

Facts: Father and son were swimming in ∆ motel’s pool. Wife had told them not to
go. Both drowned. There was no statutory required sign indication that there was no
lifeguard on duty.
Rule: Injury caused by failure to follow law creates liability.
Rationale: The hotel failed to provide the statutorily prescribed sign warning no
lifeguard on duty. Therefore, the burden shifted to ∆ to prove that the sign would
not have made a difference. ∆ could not prove that the sign didn’t matter.
Holding: Lower court holding for ∆. New trial ordered.

5. Liability is determined by objective standard

Bernard v. Char (L)

Facts: п needed to have a tooth removed but did not have insurance. When
presented with the option of extraction or root canal surgery, he opted for
extraction. However, the extraction resulted in bad side effects.
Rule: If a reasonable person would have made a different decision, there may be
liability.
 Rationale: The court used the objective standard in determining liability. ∆ tried to
argue for use of subjective standard but this was not accepted. The court stated that
the objective standard prevents the physician from being the victim of п’s hindsight
and bitterness.
Holding: Holding for п affirmed.

6. Objective standard provides protection from patient hindsight and bitterness

Scott v. Bradford p 314

Facts:
Rule:
Rationale: Court rejected Cantebury objective approach because it does not allow
for the unreasonable п to win.
Holding:

7. Subjective standard not sufficient to prove liability

Zalazar v. Vercimak (L)

Facts: п went to ∆ plastic surgeon to reduce the bags under her eyes. ∆ claimed to
be able to make her look 20 years younger for $318. п suffered bruising, numbness,
and lumps on her face. In the end, her eyes looked droopy with the lower lid
hanging from each eye. She ultimately received repair surgery from another
hospital. She still suffered lesser side effects.
Rule: If a п cannot prove that a reasonable person would have made a different
choice, no liability.
Rationale: ∆ argued for subjective standard. The court stated that п did not present
evidence to support a claim that a reasonable person would have refused surgery.
Holding: Holding for п reversed.

8. Loss of chance of recovery is compensable

Herskovitz v. Group Health Cooperative of Puget Sound (L)

Facts: п’s decedent presented with chronic coughing and chest pain. The physician
prescribed cough medicine and failed to discover his lung cancer. As a result, the
decedent’s chance of survival rate was supposedly decreased from 30% to 25%.
However, there was no way of knowing how far the tumor had not developed.
Rule: If a party’s negligence causes a reduction in the opportunity to recover, ∆ is
liable for damages caused directly by premature death.
Rationale: The court focused on the fact that it was impossible to determine
whether the physician’s failure to diagnose more likely than not caused the
subsequent disability. Plaintiff's can only recover for lost earnings and additional
medical expenses, not for emotional suffering, loss of consortium, ect..
Holding: Holding for ∆ reversed and reinstated the cause of action.

Burden of Proof
Criminal – beyond a shadow of doubt
 Civil – Preponderance of the evidence (at least 51% at fault)

Traditional Rule – loss must be 50% to recover (loss of chance/original chance)

Loss of Chance Doctrine

“A rule in some states providing a claim against a doctor who has engaged in medical
malpractice that, although it does not result in a particular injury, decreases or eliminates
the chance of surviving or recovering from the preexisting condition for which the doctor
was consulted.” – Black’s Law . You can recover for increased risk of harm. If you can
establish by expert testimony that your risk of some harm is increased by a certain
percentage, you can recover for that. It’s really hard to prove, though. You can either
show that (1) the harm was more likely than not, or (2) there was a loss of the chance
that the harm would be avoided (less than 50%).

Under the traditional rule, you must show at least a 50% loss of likelihood of life. Under
the rule of Herskovits, you can partially recover for a less than 50% loss of likelihood. In
order to sue under the “loss of chance” theory, the “loss of chance” must be substantial: it
can’t be 1% and probably can’t be 5%.

How do you calculate the damages? You could multiply the “loss of chance” times the
full damages. In some jurisdictions, on the other hand, it’s up to the jury. Still other
jurisdictions say that the chance lost is precisely the loss that should be awarded.

Loss of Chance Formula

(% Decrease of the chance / 100-% Likelihood of Survival Post-Negligence)

X Value of п’s Life = Damages

In Herskovits, the plaintiff's chance of survival decreases from 39% to 25%. This
represents a 36% reduction in the plaintiff's chances of survival (as 14 is 36% of 39).
This does NOT mean, however, that the plaintiff should be awarded 36% of his damages.

Think of it this way: With a 25% chance of survival post-negligence, the plaintiff had 75
chances out of 100 to die. How many of those 75 chances was the defendant responsible
for? Fourteen. So when the defendant did in fact die, the plaintiff's share of
responsibility was 14/75, which equates to 18.66%. If the plaintiff's life was worth $1
million, then damages to the plaintiff should be roughly $186,600.

Applying these #s to my formula:

(14/100-25 or 75) x 1,000,000 = 186,600

1. Negligence linked to decrease in chance

 Dumas v. Cooney (NL)
Facts: ∆ failed to diagnose п’s lung cancer. П had gone to doctor and had chest X-
ray. However, ∆ did not investigate further. Cancer was found on X-ray two years
later. Expert witness stated that survival for stage one tumor was 67%, while stage
two was 33%.
Rule: If a п cannot show that ∆’s negligence probably shortened decedent’s life,
recovery is not available.
Rationale: The court considered the errors produced by the loss of chance doctrine.
Holding: Holding for п reversed.

2. Recovery only when survival was greater than 50%

Fennell v. Southern Maryland Hospital (NL) (p 328)

Rule: A п cannot recover for loss of chance unless the opportunity to survive was
greater than 50%.

3. Recovery for secondary injury

Wendland v. Sparks (L)

Facts: Cancer patient, in remission, was admitted to hospital for recovery. Early
one morning experienced cardiac arrest. ∆, physician, decided not to administer
CPR even though she might have been saved. ∆ felt that her quality of life, if
revived, was not good.
Rule: A victim who suffers from a preexisting adverse condition and is subjected to
another source of injury, may have a claim for the second event.
Rationale: If it were not for the second event, the patient may have survived the
first.
Holding: Judgment for ∆ reversed.

4. Actual cause of injury must be determined

Dillon v. Twin State Gas & Electric (L)

Facts: п’s decedent was sitting on beam of public bridge when he fell off, grabbed
∆’s electric wires. He was electrocuted and thrown back onto the girder and died.
Rule: A п must prove that ∆ actually caused decedent’s death in order to recover.
Rationale: The court determined that ∆’s liability depended on whether he would
have regained his balance, or whether he would have fallen to the ground and died
absent the presence of current in the wires. The court found that the case should be
remanded to the lower court to determine these facts.
Holding: For п.

5.
Daugert v. Pappas (L)
Facts: ∆ lawyer failed to bring a timely petition for review of a COA decision for п.
Rule:
 Rationale:
Holding: For п.

“A reduction on one’s opportunity to recover (loss of chance) is a very real injury

which requires compensation. On the other hand, where the issue is whether the
Supreme Court would have accepted the review and rendered a decision more
favorable to the client, there is no lost chance. The client in a legal malpractice case
can eventually have the case reviewed… [In] the medical context, when a patient
dies all chances of survival are lost.”

Concurrent Causes

Where the separate acts of two negligent ∆s combine to directly produce a single
and unique injury, each is responsible for the result.
The biggest problem with but-for causation is having two causes acting at the same
time. When two negligent forces act at the same time, how do you figure out
liability? How do you establish that either one is the but-for cause? When separate
acts of negligence combine to produce a single injury, each tortfeasor is liable even
though neither act alone would have caused the injury.
If you have two forces acting at the same time and both forces are the possible cause, you
just sue both and sort it out later. When two separate acts of negligence combine to
produce a single injury, each tortfeasor is liable even though neither act alone would have
caused the injury.

Substantial Factor Test

When concurrent causes create a single injury, but either cause would have been
sufficient to cause the identical harm alone, “but for” causation is not necessary.
Rather, causation is established if each act was a substantial factor in causing the
injury. The “but for” test doesn’t work when two actors are negligent and act at the
same time. When you have two negligent actors or one negligent actor and one
“innocent force”, you must use the substantial factor test to figure out who is at
fault. In cases like this, the “but for” test fails. What constitutes a material or
substantial factor? What do we mean by material or substantial?

III. LIMITATION OF DUTY

1. No recovery in absence of a duty owed

Palsgraf v. Long Island R.R. Co. (NL)

Facts: A man with a package wrapped in a newspaper was trying to get into a
moving train. It seemed like the man was going to fall. The D’s employee pushed
the man inside the box and due to the push, the man lost control of his package and
 the package hit the track. The package contained fireworks and due to the contact
with the tracks, the fireworks exploded. Due to the explosion, some scales fell
down and hit the P, who was standing on the other side of the station.
Rule: A п may not recover for injury in the absence of a duty owed to them.
Rationale: (Cardozo) According to the court, the employee’s conduct can be
considered negligent towards the man he pushed in the train, but cannot be
considered negligent with regards to P who was standing far away. The man the
employee pushed suffered no harm and the P is not representing the man in the
lawsuit. According to the court, “Negligence is not actionable unless it involves
invasion of legally protected interest, the violation of a right. Proof of negligence in
the air, so to speak, will not do.” The D’s employee did not violate any of P’s rights
and therefore P cannot recover for negligence.
[Andrews: (L)]
Holding: Judgment for п reversed.

Breach?

“There was exceedingly little evidence of negligence of any sort… How much ink
would have been saved over the years if the COA had reversed Mrs. Palsgraf’s
judgment on the basis that there was no evidence of negligence at all?” Judge
Friendly

Direct Harms Intervening Causes

Reasonably
Foreseeable
Not Palsgraf
Reasonably
Foreseeable

The Importance of Palsgraf:

“The case does not matter. It is a sport: its freakish facts ensure that it will not be
repeated, and no matter how general its language, the case will have (as has in fact
been the case) no precedential importance.” - Richard Epstein

Rest Third Torts §29 Limitations on Liability and Responsibility for Tortious
Conduct
An actor is not liable for harm different from the harms whose risks made the
actor’s conduct tortious.

Proximate Causation

Granting the п can show the ∆’s breach of the standard of care and that his breach of the
standard of care and that this breach caused harm to п in a “but for” sense, is there some
other good reason for denying liability?
Proximate cause = a tool for limiting liability

General Rule of Proximate Cause: ∆ is liable for all harmful results that are normal
incidents of and within the increased risk caused by his acts.

Test: Reasonable foreseeability

(1) A reasonably result or type of harm
(2) No superseding intervening force

a. Strict liability for negligent act

In Re Polemis (L)
Facts: Ship carrying gasoline. Gas leaked, creating flammable vapors to build up in
ship’s hold. ∆’s agents were unloading cargo using planks as a platform to lower
cargo after it was lifted from hold. One of the planks fell into hold causing a spark
which destroyed the ship.
Rule: A ∆ is liable for harm caused as a result of its negligent act regardless of
foreseeability.
Rationale: The court found that the falling plank was caused by the negligence of the
agents unloading the ship. Furthermore, the court also stated that once an act is
determined to be negligent, it is immaterial if the resulting injury was unforeseeable.
Holding: For п.

b. Foreseeability of harm is necessary to create liability

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd.(Wagon
Mound) (NL)
Facts: Oil was pumped to a ship with some residual spilling into the bay. The ship
made no attempt to disperse the oil and left. Some oil was carried to п’s warf causing
minor damage. П’s were repairing a ship at the time and suspended their operations
until they assured themselves that the oil was not flammable. Two days later the oil
did catch fire, damaging the dock and two boats. The fire started when molten metal
fell onto a rag in the water which ignited the fire. (∆’ shad to consider their own
negligence)
Rule: ∆ is responsible for damages that are reasonably foreseeable. (small damage)
Responsibility is proportionate to amount of damage.
Rationale: The court did not feel that some small trivial foreseeability should create
liability. Established reasonably foreseeable test.
Holding: Judgement for п reversed, action dismissed.

Direct Harms Intervening Causes

Reasonably Kinsman = L Brauer = L
Foreseeable Scott = L
Not Palsgraf = NL Watson = NL
Reasonably Dissent = L Cook = NL?
 Foreseeable Polemis = L
Wagon Mound 1 = NL
Wagon Mound II = L

c. Liability for foreseeable harms that could have been prevented

Overseas Tankship (U.K.) Ltd. v. The Miller Steamship (Wagon Mound II) (L)
Facts: Same facts from WMI. However, this case was brought by owner of one of the
ships destroyed in the fire.
Rule: A ∆ may be held liable for foreseeable risk that eventually becomes realized.
Rationale: The court found that the oil was very difficult, but not impossible to
ignite. Defined when foreseeability applies.
Holding: Judgment for ∆ reversed.

d. Extent of harm v. type of harm

Petition of Kinsman Transit Co. (L)

Facts: Chunk of ice broke off into river and piled up between a boat and the shore.
Due to the resulting pressure, the ship became unmoored and ran into another ship.
The other ship also became unmoored. That ship struck another with the same result.
The last ship ran into bridge causing one of its towers to fall. The previous ship
combined with this ship to create a dam and brought down the second tower. The
resulting liability claims arose due to a claim that one of the ships improperly
maintained its deadman.
Rule: If the damaged caused results from the same general type that could have been
foreseen and prevented, liability is not limited.
Rationale: J. Friendly agreed with Wagon Mound and rejects Polemis.
Holding: Judgment for п affirmed.

e. No liability for unforeseeable causes of harm

Doughty v. Turner (NL)

Facts: Factory w/molten cyanide. A worker knocked a cement cover into one of the
cauldron. The cauldron exploded two minutes later injuring the п.
Rule: A ∆ is only liable for harms which are reasonably foreseeable.
Rationale: The court found that it was foreseeable that such an accident would cause
molten cyanide to splash out of the cauldron due to the cover falling into it. However,
here, the injury was the result of an explosion that occurred due to the release of
moisture from the cover. This was not a mere splash that resulted from the cover
falling in. It was due to a chemical reaction that was unexpected.
Holding: Judgment for п reversed.

f. ∆’s conduct as substantial factor creates liability

Colonial Inn Motor Lodge v. Gay (L)

 Facts: ∆ backed his car into п’s hotel striking a heating unit. Assuming no damage, ∆
drove away. However, he had severed a gas line which collected in the hotel and was
ignited by a pilot light. The result was a large explosion which damaged the hotel.
Rule: If a ∆’s conduct is a substantial factor in bringing about the injury,
foreseeability is not necessary to prove liability.
Rationale: The court considered whether the damage was a natural and probable
cause of the ∆ backing into the building. Here, the ∆’s conduct was a substantial
factor in causing the harm incurred. A negligent ∆ must take the п as he finds him,
even if it is a building.
Holding: Judgment for ∆ reversed.

g. Injury must be natural consequence of failure to perform duty

DiPonzio v. Riordan (NL)

Facts: п was refueling his car when unoccupied vehicle drove into him, breaking his
leg. The other car was left running and it slipped into gear. The station had a policy
that its patrons were to shut off their engines but it did not enforce that policy.
Rule: A ∆ is not liable for injury caused by events that are outside its purported duty.
Rationale: The court found that the events that occurred were outside the scope of
foreseeable hazards related with leaving a car running while refueling.
Holding: SJ for ∆.

h. No liability when negligence is not natural and proximate cause of injury

Central of Georgia Ry. V. Price (NL)

Facts: п was passenger on ∆’s train. The train failed to stop at her stop and she was
forced to spend the night at the next stop. She checked into a hotel and was provided
with a kerosene lamp. She left the lamp burning overnight and it exploded.
Rule: A ∆ is not liable for negligent acts that are not the natural and proximate cause
of the injury.
Rationale: The court reasoned that the injury was caused by a defective lamp. This
was the responsibility of the hotel proprietor and not the railroad company.
Holding: Judgment for п reversed.

i. Liability for natural acts of third party rendering aid

Pridham v. Cash and Carry Building Center (L)

Facts: Store clerk negligently untied some vinyl panels which fell on п’s decedent.
He was knocked onto his back. He was later transported to the hospital by ambulance.
The ambulance driver suffered a heart attack and crashed into a tree killing п’s
decedent.
Rule: A ∆ is liable for the effects of the natural acts of third parties rendering aid.
Rationale: Here, the ambulance ride was a natural act of rendering aid. Since the
Holding: For п.
§ 457. Additional Harm Resulting From Efforts To Mitigate Harm Caused By
Negligence

If the negligent actor is liable for another's bodily injury, he is also subject to
liability for any additional bodily harm resulting from normal efforts of third
persons in rendering aid which the other's injury reasonably requires, irrespective of
whether such acts are done in a proper or a negligent manner.
Illustration:
1. A's negligence causes B serious harm. B is taken to a hospital. The surgeon
improperly diagnoses his case and performs an unnecessary operation, or, after
proper diagnosis, performs a necessary operation carelessly. A's negligence is a
legal cause of the additional harm which B sustains.
d Under the rule stated in this Section, the actor is answerable only for injuries
which result from the risks normally recognized as inherent in the necessity of
submitting to medical, surgical, or hospital treatment. He is not answerable for harm
caused by misconduct which is extraordinary and therefore outside of such risks.
Illustration:
4. A negligently inflicts serious harm on B. While B is in a hospital under
treatment, his nurse, unable to bear the sight of his intense suffering, gives him a
hypodermic injection of morphine in disobedience of the surgeon's instructions and
so excessive that she knows it may be lethal. B dies as a result of the injection. A's
negligence is not a legal cause of B's death.

§ 460. Subsequent Accidents Due To Impaired Physical Condition Caused By

Negligence

If the negligent actor is liable for an injury which impairs the physical condition of
another's body, the actor is also liable for harm sustained in a subsequent accident
which would not have occurred had the other's condition not been impaired, and
which is a normal consequence of such impairment.
Illustrations:
1. Through the negligence of A, a collision occurs in which B's right leg is
fractured. B is confined to a hospital for two months. At the end of that time, he is
permitted by his surgeon to walk on crutches, and while he is doing so, with all
reasonable care, he falls and suffers a fracture of his left arm. A's negligence is a
legal cause of the second injury.
2. The same facts as in Illustration 1, except that B attempts to descend on crutches
a steep ladder into his basement. A's negligence is not a legal cause of the second
injury.

INTERVENING CAUSES

A subsequent act by a third party that is deemed to legally be a superceding cause,

thereby breaking the chain of causation between the ∆’s original negligence and the п’s
injury.
a. Foreseeable act of third party does not prevent liability

Brauer v. N.Y. Central & H.R. R. Co. (L)

Facts: ∆’s train collided with п’s wagon at a train crossing. П’s horse was killed,
wagon destroyed, and the wagon’s contents were stolen by thieves. There were two
railroad detectives on board to protect the ∆’s property.
Rule: The act of a third person will not excuse the first wrongdoer, if such act ought
to have been foreseen.
Rationale: The railroad company was chargeable with the knowledge that portable
property would be made off with due to the presence of its own detectives. The act of
the thieves was seen as a joint tort.
Holding: Judgment for п affirmed.

b. No liability for negligence when deliberate acts of third party intervene

Watson v. Kentucky & India Bridge & R.R. (NL)

Facts: ∆’s railroad cars was negligently derailed causing its cargo of gasoline to spill
onto the streets of Louisville. The gas was ignited by a man named Duerr. The
resulting explosion threw п from his bed and demolished much of his house.
Conflicting evidence existed as to whether Duerr intentionally set the fire.
Rule: A ∆ is not liable for intentional acts of a third party.
Rationale: The court found that if Duerr negligently caused the fire, ∆ was liable for
a foreseeable injury. However, if Duerr intentionally set the fire, ∆ would not be
liable due to lack of foreseeability.
Holding: For ∆ reversed and remanded.

c. Liability for inadvertent unintentional acts

Village of Carterville v. Cook (L)

Facts: ∆ village maintained sidewalk that was elevated 6 feet above the ground with
no railings. П was exercising due care when he was jostled by another pedestrian
causing him to fall off sidewalk and suffer injuries.
Rule: Inadvertant unintentional act by third party will not relieve ∆ from liability.
Rationale: The court found that the village was negligent in maintaining sidewalk.
Holding: For п.

d. No liability for intervening acts

Alexander v. Town of New Castle (NL)

Facts: п was in the process of arresting an individual when he was pushed into a pit
in the sidewalk left open by the ∆ city.
Rule: Intentional act by third party relieves ∆ from liability.
Rationale: The court found that prisoner’s actions were an intervening cause which
actually caused the injury.
Holding: Judgment for ∆ affirmed.
e. Liability for original acts

Scott v. Shepherd (NL) Compare to Laidlaw v. Sage

Facts: ∆ tossed firecracker into crowded market. The firecracker was subsequently
tossed by others attempting to prevent damage to themselves. Eventually, the
firecracker exploded in п’s face.
Rule: A ∆ may be liable for injury that results from his original act.
Rationale: The court found that the throwing of the firecracker was a continuation of
the first act.
Holding: For п.

f. No liability when п is cause of injury

The Roman Prince (NL)

Facts: п was a captain of a barge that was struck by a steamship. She did not believe
the barge was sinking and did not leave right away. When she did leave, she stumbled
and injured her knee.
Rule: If a п is responsible for its own injury, ∆ is not liable.
Rationale: The court found that п chose to wait to leave the boat at a bad time.
Therefore, she was responsible for her injury.
Holding: Judgment for п reversed and remanded.

g. Possible liability for concurring cause

Thompson v. White
Facts: п was injured when her car was struck in the rear by car driven by ∆. П
claimed that clowns hired by Gulf distracted other driver contributing to the accident.
Rule: If injury is the result of a concurrent cause, ∆ may not be liable.
Rationale: The court found that the п ∆ was acting under the influence of the clowns.
His negligence was a concurring cause and not an intervening one which insulates
Gulf from liability.
Holding: Judgment for ∆ reversed and remanded.

See Exercises on p 373

h.

Johnson v. Kosmos Portland Cement (NL)

Facts: ∆’s barge was being repaired. Prior to this, the barge had been used to haul oil
and was filled gases. ∆ failed to remove these gases. The gases were ignited by
lightning and killed everyone on board. The administrators of decedent’ sestates
brought suit.
Rule:
Rationale: The court found that ∆’s negligence was no the proximate cause of the
deaths.
Holding: For ∆.
i.

Henry v. Houston Lighting & Power Co. (NL)

Facts:
Rule:
Rationale:
Holding: SJ for ∆.

j.

Clark v. E.I. DuPont de Nemours Powder Co. (L)

Facts:
Rule:
Rationale:
Holding: For п.

k.

Richardson v. Ham (L)?

Facts:
Rule:
Rationale:
Holding: For п, new trial.

l.

Farmiliant v. Signapore Airlines, Ltd. ( )

Facts:
Rule:
Rationale:
Holding:

m.

Bell v. Campbell ( )
Facts:
Rule:
Rationale:
Holding:

Keep in mind type of harm v. manner in which it was realized

Types of Damages

• Nominal
 • Compensatory
• Punitive

Compensatory Damages

Economic Non-Economic
(Special) (General)
Lost Earnings Pain and Suffering
Medical Expenses Loss of enjoyment of life
Damage to Property Loss of Consortium
Fright
Damage to Reputation
Damage to Property
Cost to repair
Dimunition

If not repairable:
Cost to replace (market value)
of value

Loss of use
Cost of rental
Loss of earnings due to damage

Mitigation of Damages

After being victimized by a tort, Plaintiff has a duty to take reasonable steps to avoid
further damages.

Miske v. Bartell Drug (593 P.2d 1308)

1) If personal property has market value, then market value = measure of damages
2) If destroyed property has no market value, but can be replaced or reproduced, then
measure = cost to replace
3) No market value & can’t be replaced = measure is value to plaintiff

Tort Remedies
Post-Death

Survival Statute Wrongful Death

• Concept: creates a tort • Concept: allows пs that are
action based on accident that specific relations to sue for
survives victim’s death and benefits that person would have
compensates for damages received in future
suffered by decedent up to point
 of death • OCGA §51-4-2, 51-4-5(a)

• OCGA §51-4-5(b) • Creates a right of action that

may be brought by surviving
• Brought by decedent’s spouse and/or surviving children
estate for full value of decedents’ life
or next of kin

a.

Landers v. Ghosh (L)

Facts: п’s decedent a carpenter who was shot by a stranger. He called ∆, a surgeon,
who said he would come soon. However, he did not arrive until too late to save him.
Decedent was 22 years old and unemployed. He had a GED.
Rule:
Rationale: The court considered expert testimony regarding decedent’s estimated lost
earnings based on his education.
Holding: Judgment for п affirmed.

b.

Pescatore v. Pan American World Airways (L)

Facts: п’s decedent was a killed when ∆’s airplane was bombed. He was highly
educated, and a VP for BP. The spouse sued ∆ for loss of consortium and loss of
support.
Rule:
Rationale:
Holding: Judgment for п.

Loss of Consortium
A loss of the benefits that one spouse is entitled to receive from the other, including
companionship, cooperation, aid, affection, and sexual relations.

a.

Hadigan v. Harkins (L)

Facts: п’s wife was killed in three-car automobile collision. Decedent was a
housewife. П sued for wrongful death.
Rule:
Rationale:
Holding: Judgment for п reversed.

b.

Benwell v. Dean (L)

 Facts:
Rule:
Rationale:
Holding: Judgment for п affirmed.

Collateral Source Rule

“The doctrine that if an injured party receives compensation for the injuries from a source
independent of the tortfeasor, the payment should not be deducted from the damages that
the tortfeasor must pay.”

Opportunity Cost
The value of something you give up by pursuing an alternative choice.
(COURTS DO NOT USE)

Louisville Nashville Ry. V. Creighton (L)

Facts:
Rule:
Rationale:
Holding:

Present Value Formula

PV = $1.00/ (1+i)n

Taxation of Damages
Compensatory Damages: Non-taxable if “personal physical injuries or physical
sickness”; otherwise, taxable

Punitive Damages: Taxable

Contingent Fee As Taxable Income: Split

Does п have to pay for portion of award paid to attorney?

Prejudgment interest does not apply to settlements.

Olin Corp. v. Smith

Facts:
Rule:
Rationale:
Holding:

Williams v. United States

Facts:
Rule:
Rationale:
Holding:
Comparison
Loss of leg

Difference
$5M v. $500K
Age expectancy
Age at injury

Beynon v. Montgomery Cablevision Ltd. Partnership

Facts:
Rule:
Rationale:
Holding:

Douglass v. Hustler Magazine, Inc.

Facts:
Rule:
Rationale:
Holding:

Weller v. American Broadcasting Companies, Inc

Facts:
Rule:
Rationale:
Holding:

In Intentional Torts you do not have to prove all elements of IIED

3 Categories of Emotional Distress

IIED
NIED
Caused by other intentional torts

Daugherty v. Erie Ry, Co.

Facts:
Rule:
Rationale:
Holding:

Hedonic Damages
Damages that attempt to compensate for the loss of the pleasure of being alive. Such
damages are not allowed in most jurisdictions.

Also called loss of enjoyment of life

Torts 2 15 08
Punitive Damages

Also known as “exemplary damages” and are intended to punish the ∆.

Awarded For:
Gross misconduct, intentional torts

Purposes of Punitive Damages

Promote healthy self-help
Social disapproval
Compensate & deter when damages are otherwise nominal
Empower ∆s to act as their own prosecutors
To ensure underenforcement does not disrupt optimal level of deterrence
To deter economic takings

Dardinger v. Ohio 98 Ohio St. 3d 77

$49 mil punitive damages
Reduced to $30 mil
Court claims power of “alternative distribution” and rules п to receive $10 mil and
the other $20 mil to go to creation of cancer research fund at Ohio State

Georgia P/D Statute: O.C.G.A.51-12-5.2

• “Clear and convincing evidence”
• “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of
care which would raise the presumption of conscious indifference to
consequences”
• Bifurcated: (1) whether, then (2) amount
• No limit if P/L or specific intent to cause harm, but limit $250,000 otherwise
• Only 1 P/D award in state if P/L

Georgia tends to be more liability limiting than the rest of the country.

a.

Murphy v. Hobbs
Facts:
Rule:
Rationale:
Holding:

b.

Kemezy v. Peters
Facts: п was
Rule:
Rationale:
 Holding: Judgment for п affirmed

c. Sufficient evidence needed to support punitive damages

Kopczick v. Hobart Corp.

Facts: п lost finger in ∆’s slant saw for cutting meat. It was known that the saw had a
tendency to pull the meat through the machine creating a dangerous situation.
Rule: A п must provide sufficient evidence of pre-injury knowledge of a defect in
order to prove punitive damages.
Rationale: The court looked at the total number of meat cuts (4,540,080,000) and 30
injuries. Thus a resulting figure of 0.5% of the total production and 0.0000007% of
total cuts made. As a result the COA
Holding: Judgment for ∆ reversed award for punitive damages.

d.

Grimshaw v. Ford Motor Co.

Facts: п was injured when riding in Pinto when the car was rear ended. As a result,
the collision caused the gas tank to become punctured and spray gas into the
passenger compartment. A fire resulted burning the п. Ford was aware of the design
defect but chose not to recall the car.
Rule: A ∆ is liable for intentional disregard for the likelihood of injury to others.
Rationale: The court looked to Ford’s conduct. The evidence supported that Ford
could have corrected the defect but instead chose to engage in a cost-benefit analysis
balancing human lives against corporate profits. The court found this to be a callous
indifference to public safety.
Holding: Judgment for п affirmed.

Additur & Remittitur

Additur: A trial courts order, issued usually with the ∆’s consent, that increases the
jury’s award of damages to avoid a new trial on grounds of inadequate damages
Remittitur: An order awarding a new trial, or a damages amount lower than awarded by
the jury, and requiring the п to choose between those alternatives

e.

Moskovitz v. Mt. Sinai Medical Center

Facts:
Rule:
Rationale:
Holding:

f.

Rufo v. Simpson
Facts:
 Rule:
Rationale:
Holding:

Distinction:
Difference is that in Moskovitz, the ∆’s net worth was equal to the original award. In
Simpson, the earning potential was in line with the award.

g.

Kennan v. Checker Cab Co.

Facts: п was a blind man who was battered by cab driver when he and his dog
entered a cab. The driver got angry about the dog but did not realize that he was
blind.
Rule:
Rationale: The court looked to the “complicity rule” as stated in the Restatement of
Agency which holds the master liable for injuries when the master is aware of the
manner of the act. Here, the ∆ was aware of cabbies not transporting blind persons
but not of their tendency to forcibly eject or assault these persons.
Holding: Judgment for п reversed.

Complicity rule relates back to Respondeat Superior Rule

§ 921. Provocation

Compensatory damages are not diminished by the fact that the injured person
provoked the tortfeasor; but the provocation is considered in determining the
allowance and amount of punitive damages.
Illustration:
1. A insults B and runs away. B pursues A, knocks him down and breaks his
glasses. A is entitled to compensatory damages for the harm done to his glasses and
for any physical harm caused to him, undiminished by the fact that he insulted B.
However, the jury should be instructed that while it has discretion to award punitive
damages, in determining whether to do so and the amount, it should consider the
fact of the insult.

In re Exxon Valdez
Facts: ∆’s captain was a known alcoholic. On the night in question, the captain was
drunk and gave his mate instructions regarding navigation. However, the mate missed
the turn and beached the tanker spilling 11,000,000 gallons of crude oil.
Rule:
Rationale:
Holding: Judgment for п affirmed.

BMW v. Gore
Facts:
 Rule:
Rationale: The court found that this award was excessive. 500:1 ratio.
Holding: Award for п reversed.

Apportionment

Method a п may seek compensation from Multiple ∆s.

Joint Tortfeasors – multiple tortfeasors causing harm that cannot be determined who
caused what
Joint and several Liability – each ∆ is liable for all of the п’s damages. Generally, it
allocates the risk of an insolvent ∆ to other ∆s rather than to the п.

Contribution
A ∆ that is 10% liable may collect 90% from the other tortfeasor OR
May collect 50% in certain jurisdictions (like GA) (50-50 split)

Comparative Negligence
Liability is allocated between п and ∆.

Severable Liability
Each ∆ held accountable for their share of harm

Joint and Several Liability Variations

• Joint and Severable Liability (GA)
• Several Liability
• No joint liability if co-∆’s responsibility is less than 50%
• Joint and several liability only if п was not at fault
Contribution:
• Proportional contribution based on fault
• Pro rata contribution

Defenses

A. Contributory and Comparative Negligence

Contributory Negligence – If п’s own negligence contributed to the injury, then they
cannot recover anything form ∆s whose negligence also contributed to them.

Harris v. Meadows
Facts: ∆ made left hand turn into the path of п.
Rule: A п may not recover for injury caused by the negligence of both parties.
Rationale:
Holding: Judgment for ∆ affirmed.
Comparative Negligence –

Last Clear Chance

“The rule that a п who was contributorily negligent may nonetheless recover form the ∆
if the ∆ had the last opportunity to prevent the harm but failed to use reasonable care to
do so (in other words, if the ∆’s negligence is later in time than the п’s)”

§ 479. Last Clear Chance: Helpless Plaintiff

A plaintiff who has negligently subjected himself to a risk of harm from the
defendant's subsequent negligence may recover for harm caused thereby if,
immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and
care, and

(b) the defendant is negligent in failing to utilize with reasonable care and
competence his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff's situation and realizes or has reason to realize the peril
involved in it or

(ii) would discover the situation and thus have reason to realize the peril, if he were
to exercise the vigilance which it is then his duty to the plaintiff to exercise.
Comment:
a. The rules of the “last clear chance” stated in this Section, and in the following § 480,
represent an exception to the general rule that the plaintiff's contributory negligence bars
his recovery. The exception had its origin in Davies v. Mann, 10 M. & W. 546, 152
Eng.Rep. 588 (1842), where the plaintiff left his ass fettered in the highway, and the
defendant ran into it.

Two explanations are commonly given for this departure from the general rule that
contributory negligence bars recovery. One is that the later negligence of the defendant
involves a higher degree of fault. This may be true in cases where the defendant has
discovered the danger and his conduct approaches intentional or reckless disregard of it;
but it fails to explain many cases in which his negligence consists merely of a failure to
discover the situation at all, or in slowness, clumsiness, inadvertence, or an error of
judgment in dealing with it. The other explanation is that the plaintiff's negligence is not
a “proximate” or legal cause of the harm to him, because the later negligence of the
defendant is a superseding cause which relieves the plaintiff of responsibility for it. This
is quite out of line with modern ideas as to legal cause. Where the injury is to a third
person, as for example a passenger in the actor's car, the fact that the actor has the last
clear chance does not relieve the other driver of liability. See § 433A, Comment b. The
causal relation can scarcely be otherwise where the injury is to the other driver himself.

In reality the rules of the last clear chance appear to arise out of a dislike for the defense
of contributory negligence, which has made the courts reject it in situations where they
can regard the defendant's negligence as the final and decisive factor in producing the
injury.
Illustrations:
1. A is driving his car negligently. In consequence he collides at an intersection with the
car of B. A's car is thrown onto the other side of the road, upon which C's car is
approaching. C sees the car, but instead of stopping unreasonably thinks that he can cut
around it. The space is too narrow, and he collides with A's car, overturning it and
breaking A's leg. C is subject to liability to A.

2. The same facts as in Illustration 1, except that when C sees the wreckage he tries to
stop. C unreasonably becomes confused, and puts his foot upon the accelerator instead of
upon the brake. C is liable to A.

3. The same facts as in Illustration 1, except that C does everything which then could be
done to stop the car but is unable to do so because his brakes are negligently defective. C
is not liable to A.

4. A is negligently driving his car at night without headlights. The absence of lights
prevents A from discovering B's car, negligently stopped on the highway without lights,
in time to avoid a collision with it. Although A is driving with proper care in all other
respects, he collides with B's car, injuring B. A is not liable to B.

§ 480. Last Clear Chance: Inattentive Plaintiff

A plaintiff who, by the exercise of reasonable vigilance, could discover the danger
created by the defendant's negligence in time to avoid the harm to him, can recover
if, but only if, the defendant
(a) knows of the plaintiff's situation, and

(b) realizes or has reason to realize that the plaintiff is inattentive and therefore
unlikely to discover his peril in time to avoid the harm, and

(c) thereafter is negligent in failing to utilize with reasonable care and competence
his then existing opportunity to avoid the harm.
Comment:
a. The situation dealt with in this Section differs from that dealt with in § 479 in one
important particular: § 479 is applicable only where the plaintiff immediately before
his harm could not have avoided it by the exercise of that vigilance which a
reasonable man would exercise for his own protection. This Section states the rule
under which a plaintiff who could have made timely discovery of his peril if he had
been on the alert can recover notwithstanding his negligent inattention. In such a
situation, the defendant has no reason to believe that he has the exclusive power to
prevent the harm unless he not only knows or has reason to know of the plaintiff's
situation but realizes or should realize that the plaintiff does not know the peril of
his situation and is, therefore, in a danger from which only the defendant's careful
action can protect him.

GA and Last Clear Chance

Elements
(1) Party number 1, by his own, by his own negligence, must have put himself in a
position of peril from which he could not extricate himself
(2) party number two must have knowledge and appreciation of the injured person’s
peril in time to avoid the injury
Applies to пs as well

Comparative Fault in GA OCGA §51-11-7

If the plaintiff by ordinary care could have avoided the consequences to himself
caused by the defendant's negligence, he is not entitled to recover. In other cases the
defendant is not relieved, although the plaintiff may in some way have contributed
to the injury sustained.

Court has adopted 49% rule in GA

McIntyre v. Ballentine
Facts:
Rule:
Rationale:
Holding:

Good Samaritan Doctrine:

Provides a shield from liability for injury and damages that may result when an actor
voluntarily provides assistances, which he would not otherwise be legally obligated to do,
in an emergency situation.

DO PROBLEMS ON PG. 580 AS PRACTICE EXAM QUESTIONS

Torts 2 22 08
B. Express Assumption of the Risk
Claims that the п assumed the risk of the harm that occurred and therefore should be
barred from recovering from the ∆.

Three Types:
A. п expressly assumed the risk by formal agreement
B. ∆ had no duty to protect the п from the harm suffered because the risk of it was
inherent in an activity the п chose to undertake.
C. п chose to encounter a risk negligently created by the ∆.

exculpatory clause. A contractual provision relieving a party from liability resulting

from a negligent or wrongful act.

a. Exculpatory clause must manifest intent to release or indemnify liability for

negligence

Van Tuyn v. Zurich American Ins. Co. (L)

 Facts: п signed release of risk and claims in order to ride a mechanical bull while at a
bar. She had never seen one before but did observe others being thrown from it
throughout the evening. She told the operator to go slowly, to which he said “We’ll
take care of it.” However, after getting on, the bull sped up and she was thrown
within 15 seconds.
Rule: A ∆ may not rely on an exculpatory clause to prevent liability for negligence
unless the clause specifically addresses that it is a release from liability for its own
negligence.
Rationale: The exculpatory clause did not manifest the intent to release or indemnify
∆ for its own negligence. Therefore, the agreement does not bar the п’s recovery.
Holding: SJ for ∆ reversed.

b. No disparity of bargaining power supports enforcement of exculpatory contract

Manning v. Brannon (NL)

Facts: п took skydiving lessons from ∆. П signed exculpatory contract that released
the ∆ from liability in the event of injury or death. П watched a video of ∆’s attorney
explaining the terms of the contract. On п’s third jump, both the main and reserve
chutes failed to open properly. As a result, п was forced to cut away his main chute as
instructed but the reserve chute did not work properly.
Rule: A ∆ may rely on an exculpatory contract resolving it of liability for negligence
when there is na absence o f bargaining power between the parties.
Rationale: The court looked to the bargaining power of the parties. It looked to two
considerations, (1) the importance of the subject matter to the physical well-being or
economic well-being of the party agreeing to the release; and (2) the amount of free
choice that party could have exercised when seeking alternative services. The court
found that parachuting was not necessary or important to п’s physical or economic
well-being, and that he was free to choose another service. Therefore, there was no
disparity in bargaining power and the exculpatory contract was valid.
Holding: Judgment for п reversed.

c. Exculpatory Clause valid when parties on equal footing

Anderson v. Erie Ry. Co. (NL)

Facts: п bought “clerical ticket” for a reduced fair. This was a reduced value ticket
for which the bearer assumed all risk of injury. The train derailed and he died.
Decedent’s estate filed to recover.
Rule: An exculpatory clause may be upheld when both parties have equal bargaining
power.
Rationale: The court found that decedent was on equal footing with the ∆ when he
entered into the agreement.
Holding: Judgment for п reversed.
(CL) If a passenger signed a release promising not to sue a comon carrier for injuries
suffered as a result of the carrier’s negligence, the release was void.

d. Exculpatory provisions void if contrary to public interest

 Tunkl v. Regents of the University of California
Facts: п was admitted to UCLA hospital and signed a document setting forth
“Conditions of Admittance” releasing the hospital from negligence or wrongful acts
of its employees. П claimed he was injured due to malpractice committed by
employees.
Rule: Exculpatory provisions may be held unenforceable if they involve “the public
interest.”
Rationale: The court looked to the validity of the exculpatory contract and developed
a test to determine its validity compared with public policy. (See p585)
Holding: Judgment for ∆ reversed.

§ 496B. Express Assumption of Risk

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm

arising from the defendant's negligent or reckless conduct cannot recover for such
harm, unless the agreement is invalid as contrary to public policy.

Comment:

b. There is no general policy of the law which prevents the parties from agreeing that
the defendant shall be under no such general or specific duty to the plaintiff. As stated
in § 892, the parties may agree that the defendant shall not be liable even for conduct
intended to invade the plaintiff's interests. Likewise they may agree that the defendant
shall not be liable for conduct which would otherwise be negligent or reckless. Where
such an agreement is freely and fairly made, between parties who are in an equal
bargaining position, and there is no social interest with which they interfere, it will
generally be upheld. Thus the plaintiff may agree, for or without consideration, that
an adjoining landowner may carry on blasting operations which involve such a high
degree of risk of harm to the plaintiff's house that they would otherwise be considered
reckless.
There are, however, certain agreements to assume the risk which, as stated in
Comments e to j below, will not be enforced.

c. In order for an express agreement assuming the risk to be effective, it must appear
that the plaintiff has given his assent to the terms of the agreement. Particularly where
the agreement is drawn by the defendant, and the plaintiff's conduct with respect to it
is merely that of a recipient, it must appear that the terms were in fact brought home
to him and understood by him, before it can be found that he has accepted them.

Illustration:
1. A, attending a theatre, checks his hat in B's check room. He is handed a ticket, on
the back of which, in fine print, it is stated that B will not be liable for any loss or
damage to the hat. Reasonably believing the ticket to be a mere receipt, A accepts it
without reading it. B negligently loses the hat. A is not bound by the provision on the
back of the ticket.
 Comment d. In order for the agreement to assume the risk to be effective, it must also
appear that its terms were intended by both parties to apply to the particular conduct
of the defendant which has caused the harm. Again, where the agreement is drawn by
the defendant and the plaintiff passively accepts it, its terms will ordinarily be
construed strictly against the defendant. In particular, general clauses exempting the
defendant from all liability for loss or damage will not be construed to include loss or
damage resulting from his intentional, negligent, or reckless misconduct, unless the
circumstances clearly indicate that such was the plaintiff's understanding and
intention. On the same basis, general clauses exempting the defendant from all
liability for negligence will not be construed to include intentional or reckless
misconduct, or extreme and unusual kinds of negligence, unless such intention clearly
appears.

j. Disparity of bargaining power. An express agreement for the assumption of risk

will not, in general, be enforced where there is such disparity of bargaining power
between the parties that the agreement does not represent a free choice on the part of
the plaintiff. The basis for such a result is the policy of the law which relieves the
party who is at such a disadvantage from harsh, inequitable, and unfair contracts
which he is forced to accept by the necessities of his situation. The disparity in
bargaining power may arise from the defendant's monopoly of a particular field of
service, from the generality of use of contract clauses insisting upon assumption of
risk by all those engaged in such a field, so that the plaintiff has no alternative
possibility of obtaining the service without the clause; or it may arise from the
exigencies of the needs of the plaintiff himself, which leave him no reasonable
alternative to the acceptance of the offered terms.

Illustration:
5. In a crowded city, A drives his car around for half an hour without finding a place
to park it. Having no other way to leave his car in order to transact important
business, he drives it into B's garage. B gives him a ticket, of a type in general use in
garages and parking places in the city, which states on its face that the car is left
entirely at A's risk, and that B will not be liable for any loss or damage, even though
it is due to his negligence. A reads the ticket and accepts it without comment.
Through the negligence of B the car is stolen. The terms of the ticket are not effective
to bar A's recovery from B for the loss of the car.

C. Primary Assumption of the Risk

Doctrine that prevents the п from recovering for injuries they suffer when they freely
undertake dangerous activities.
Amounts to a way of saying that the ∆ had no duty to protect the п from the harm
he has suffered.

a. One who takes part in dangerous activity assumes the risks

 Murphy v. Steeplechase Amusement Co. (NL)
Facts: п chose to enter an amusement ride called the flopper. The ride was described
as basically an inclined tread mill that operated in an erratic manner in order to throw
others off. It was surrounded by padding on the walls and floor surrounding the belt.
The п observed the ride before entering. However, when п stepped onto the ride, the
belt jerked and he was thrown to the floor suffering injuries.
Rule: One who takes part in a dangerous activity accepts the obvious and
Rationale:
Holding: Judgment for ∆ reversed.

volenti non fit injuria (voh-len-tI non fit in-joor-ee- ). [Law Latin "to a willing
person it is not wrong," i.e., a person is not wronged by that to which he or she
consents] The principle that a person who knowingly and voluntarily risks danger
cannot recover for any resulting injury.

b. Assurance of safety does not relieve liability

Woodall v. Wayne Steffner Productions

Facts: п performed as a human kite, basically he strapped himself to a man sized kite
tied to a car going around 30mph. п accepted job w/∆ who promised to provide an
adequate driver.
Rule: If a party surrenders his better judgment upon an assurance of safety, he does
not assume the risk unless a danger is so obvious and extreme then there can be no
reliance upon the assurance.
Rationale: The court found that the п was assured about the competency of the
driver. As a result of these assurances, п relied on these assurances and performed the
stunt. The court found this to be a reasonable act on the п’s part. Therefore, п may
recover.
Holding: Judgment for ∆ affirmed.

c. Injury normally caused in course of activity is not recoverable

Cohen v. McIntyre
Facts: п was veterinarian who performed an examination on ∆’s dog. The dog was
obviously agitated and he had placed a muzzle on him for the exam. After the exam,
the ∆ removed the muzzle and п was injured.
Rule: Absent misrepresentation, concealment, or reckless conduct, a ∆ owes no duty
of care to п when injury occurs within the normal course of activities.
Rationale:
Holding: SJ for ∆ affirmed.

d.

Neighbarger v. Irwin Industries

Facts:
Rule:
 Rationale:
Holding: SJ for ∆s reversed.

e.

Hendricks v. Broderick
Facts: п and ∆ were turkey hunting.
Rule:
Rationale: Assumption of the risk of negligence is not a separate defense.
Holding:

f.

Lowe v. California League of Professional Baseball (not covered)

Facts:
Rule:
Rationale:
Holding:

g.

Hackbart v. Cincinnati Bengals (problem)

Facts: ∆ was a defensive back for Denver Broncos. During a game with the Bengals,
п performed a blocking maneuver on one of the Bengal’s players. After the play, the
Bengals player struck a blow to п to the back of the kneeling п’s head and neck. П’s
neck was fractured.
Rule:
Rationale:
Holding: Judgment for ∆ reversed and remanded for new trial.

Georgia Assumption of Risk

(1) п had actual knowledge of danger
(2) Understood and appreciated the risks associated with such danger
(3) Voluntarily exposed himself to those risks

Secondary Assumption of the Risk

When ∆ does have a duty to the п and may have breached it.
(Affirmative Defense) ∆ argues that the п recognized whatever danger resulted from the
∆’s alleged negligence and voluntarily chose to encounter it.

a.

Kennedy v. Providence Hockey Club

Facts:
Rule:
Rationale:
 Holding:

b.

Hennessey v. Pyne
Facts:
Rule:
Rationale:
Holding:

c.

Fagan v. Atnalta
Facts:
Rule:
Rationale:
Holding:

d.

Marshall v. Ranne
Facts:
Rule:
Rationale:
Holding:

Full Preference Doctrine

Where a ∆ offers two choices, one of which is a safer choice, and the п takes the more
risky option.
Here the п cannot recover if the risks are fully explained.

§ 496E. Necessity of Voluntary Assumption

(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiff's acceptance of a risk is not voluntary if the defendant's tortious
conduct has left him no reasonable alternative course of conduct in order to
(a) avert harm to himself or another, or
(b) exercise or protect a right or privilege of which the defendant has no right to
deprive him.

Comment:
b. The plaintiff's acceptance of the risk is to be regarded as voluntary even though he
is acting under the compulsion of circumstances, not created by the tortious conduct
of the defendant, which have left him no reasonable alternative. Where the defendant
is under no independent duty to the plaintiff, and the plaintiff finds himself
confronted by a choice of risks, or is driven by his own necessities to accept a danger,
 the situation is not to be charged against the defendant. Thus a plaintiff who is forced
to rent a house which is in obvious dangerous condition because he cannot find
another dwelling, or cannot afford another, assumes the risk notwithstanding the
compulsion under which he is acting.

Illustration:
1. A is injured in an accident, bleeding badly, and in need of immediate medical
attention. Having no other means of transportation, he asks B to drive him to the
hospital, knowing that B's car has defective brakes. A assumes the risk of injury
caused by the brakes.

Torts 2 29 08

Products Liability

Compare & Contrast

Torts Contracts
Function: Protect society’s interests by Function: Protect society’s interests in the
preventing harm performance of promises
Damages: Consequential Damages: Expectation, reliance, &
restitution
Economic Loss Rule: no recovery in tort if Warranty Damages for Defective Product
only damage is to product
Values: send incentives, correct disparities Values: respect autonomy
in info & bargaining power

a. Liability to foreseeable пs

McPherson v. Buick Motor Co. (L)

Facts: п was injured while driving his car when the wooden wheel broke. It was
determined that the wheel, purchased from a manufacturer other than Buick, was
defective. Evidence showed that the defect could have been discovered by a
reasonable inspection.
Rule: A manufacturer may be liable for all reasonably foreseeable пs that may be
injured by his defective product.
Rationale: (Cardozo)
Dissent: If a manufacturer can be held liable for injury to all persons that may be
injured by his product, this will open the floodgates of litigation.
Holding: Judgment for п affirmed.

b. Liability for injury when product properly used

Escola v. Coca-Cola Bottling Co. (L)

 Facts: п was injured when a bottle of Coca-Cola broke in her hand. П alleged that ∆
was negligent in selling an over pressurized bottle of soda, or that the bottle was
defective.
Rule: A manufacturer in exclusive control of a product that causes injury to another
due to negligence on the manufacturer’s part, is liable for that injury.
Concurrence: (Traynor) Agreed but based his agreement on principles of strict
liability. The manufacturer’s liability should be defined in terms of the safety of the
product in normal and proper use, and not subjected to injuries that cannot be traced
to the product as it reached the market.
Rationale: п provided evidence that the inspection process in regards to the
manufacture of the bottles was sufficient.
Holding: Judgment for п affirmed.

c. Liability when product used without inspection

Greenman v. Yuba Power Products (L)

Facts: п purchased a Shopsmith power tool based on informational brochures
prepared by the manufacturer. After he had worked on a piece of wood without
difficulty, he was injured when it suddenly flew out of the machine and struck him on
the forehead.
Rule: A manufacturer is strictly liable in tort when an article he places on the market,
knowing that it is to be used without inspection for defects, proves to have a defect
that causes injury to a human being.
Rationale:
Holding: Judgment for п affirmed.

Categories of Product Defect

• Manufacturing Defects

• Design Defects

• Failure to Warn

d. Liability when product was under manufacturer’s exclusive control

Weldge v. Planters Lifesavers (L)

Facts: п was injured when he replaced the cap onto a jar of peanuts. The jar was
purchased by his housemate from a local Kmart. The jar was manufactured by
Brockway. Planters, Brockway, and Kmart were all named as ∆s. Prior to the injury,
the housemate used an exacto knife to remove the UPC symbol as part of a rebate
sponsored by Alka-Seltzer. The jar was placed on top of the refrigerator until used by
п.
Rule:
Rationale: Due to the original summary judgment motion, the court assumed that the
jar was not tampered with and the п used reasonable force when replacing the lid. On
appeal,
Holding: SJ for ∆ reversed and remanded.
e. No liability for tangible items

Winter v. G.P. Putnam & Sons (NL)

Facts: пs were mushroom enthusiasts who read ∆ publisher’s book on mushrooms.
Пs grew and harvested mushrooms according to the book. Пs became ill and required
liver transplants. They sued claiming the book contained incorrect information.
Rule: Strict liability is limited to the manufacture of tangible items.
Rationale: The court compared the case at bar to other strict liability cases. In the
end, the court rationalized that a high priority is placed on the unfettered exchange of
ideas.
Holding: Judgment for ∆ affirmed.

f. Liability for special responsibilities

Saloomey v. Jeppsen (L)

Facts: п’s decedent was a professional pilot, flying his own plane. He used ∆’s
navigational charts to travel from West Virginia to Connecticut. Decedent attempted
to land at an airport that was indicated to have a full instrument landing system.
However, it did not and the plane crashed. П sued under strict liability.
Rule:
Rationale: The court weighed the possibility of the map being a tangible product or
the rendition of a professional service. The court decided that the ∆ undertook a
special responsibility to insure that consumers will not be injured.
Holding: Judgment for п.

g. Professional, necessary services

Magrine v. Krasnica
Facts: п was injured when a needle used to inject a local anesthetic broke off in her
gum. It was alleged that the needle broke due to a latent defect .
Rule: Professionals that provide essential services to the public are not subjected to
strict liability.
Rationale: The court rejected the п’s position that the loss should be spread to the
dentist. The court found that the universe in which the dentist worked was too small
to justify this. Therefore, the dentist should not be held liable.
Dissent: The dissent looked to the fact that the dentist chose the needle and was in a
better position to select the manufacturer.
Holding: Judgment for ∆ affirmed.

h. Non-essential services

Newark v. Gimbel’s Inc.

Facts: п received a permanent wave at a beauty salon. ∆’s employee applied a
solution to her hair which caused a burning sensation. Later, her forehead turned red
and large amount of hair fell out. П sued alleging negligence and defective product.
 Rule: A ∆ that provides unnecessary services to the public may be held liable for
injury under Strict liability.
Rationale:
Holding: Judgment for ∆ reversed and remanded.
Rest 3d Torts §8

Torts 3 7 08
C. DESIGN DEFECTS
Intended design itself is not safe.

Rest (Third) of Torts:

Risk-Utility Test
“A method of imposing product liability on a manufacturer if the evidence shows that a
reasonable person would conclude that the benefits of a product's particular design versus
the feasibility of an alternative safer design did not outweigh the dangers inherent in the
original design.”

Variations on Design Defects

Tests:
• Risk-Utility - Balances risk of harm against individual or social benefit. An
important question is whether the manufacturer could have reasonably designed a
safer product based on available technology and cost.
• Consumer Expectations - is the product more dangerous than the average
consumer would expect?
• Safe for Intended Purpose

Factors:
• State of the Art (reasonable alternative design test)

• Open and Obvious (kin to assumption of the risk)

Learned Intermediary Doctrine

The principle that a prescription-drug manufacturer fulfills its duty to warn of a drug's
potentially harmful effects by informing the prescribing physician, rather than the end-
user, of those effects.

a. Reasonable alternative design

Dawson v. Chrysler Corp.

Facts: п, a police officer, was injured when his car wrapped around a steel pole. П
alleged that the vehicle was defective because it did not have a proper frame. ∆
argued that the vehicle complied with all relevant governmental safety standards. ∆
also argued that the п’s proposed design changes would be less socially beneficial
than the actual design.
Rule: If an injured party can provide evidence of a reasonable and safer alternative
design, liability may be found.
 Rationale: The court rejected the ∆’s claim that compliance with the National safety
standards did not relieve it from liability. The court then applied the risk/utility test in
reaching its decision on strict liability. The test illustrated 7 factors to consider when
applying the test. (See p 482) Private liability law is messed up everywhere, but court
would not take responsibility to change this fact. This type of change should be left
up to Congress, which is better suited to handle the job.
Holding: Judgment for п affirmed.

b. Loss spreading

Blankenship v. General Motors Corp.

Facts:
Rule:
Rationale: Court will accept and hear such cases.
Holding:

c. Reasonable expectations test

Bruce v. Martin-Marietta Corp.

Facts: Airplane carrying football team crashed in mountains. Several passengers
could not exit the plane due to seats that came loose and blocked safe passage. When
the plane was new, the seats were state of the art at in 1952. However, updated seats
were available that would not have come loose.
Rule: If a п can show that a product causing harm was dangerous beyond the
reasonable expectations of the ordinary customer, it may collect for injury.
Rationale: The court stated that it was not reasonable for a passenger to expect that
an older plane should have the same safety features as a current model plane.
Holding: SJ for ∆ affirmed.

d. Industry standards are not relevant

Lewis v. Coffing Hoist Division, Duff-Norton Co.

Facts: п was using a mechanical hoist to lift a piece of heavy machinery. In the
process of lifting, п accidently hit the “down” button which released the equipment
onto his leg. П filed suit claiming that the hoist was not safe for its intended use
because it did not have a protective guard around the down button. ∆ argued that 90%
of other hoists on the market did not have such a device, so they should not be liable.
Rule: When determining liability based on strict liability, the court may only look to
Rationale: The court found that the ∆’s argument was inappropriate because it would
bring in concepts of negligence that would distract the jury from the real issue of
strict liability in product design.
Holding: SJ for п affirmed.

e. Open and Obvious

Dreisonstok v. Volkswagenwerk A.G.

 Facts: п was injured when Volkswagen Microbus crashed into a telephone pole. П
brought suit claiming that the bus was negligently designed and not crashworthy.
Rule: When a design is intended for a particular purpose and there are reasonable and
obvious
Rationale: The court considered the design of the vehicle in relation to its intended
purpose. The design was intended to maximize the amount of cargo/passenger space
in order to keep the price reasonable and maneuverable. As a result, the court found
that it was apparent that the trade-offs between purpose and safety made the design
appropriate.
Holding: Judgment for п reversed.

f. Design defect must be unreasonably dangerous for its intended use

McCarthy v. Olin Corp.

Facts: п’s decedent was shot by ∆’s hollow point bullet which had been pulled from
the market. Пs attempted to hold the ∆ strictly liable because the bullets were
defectively designed.
Rule: In order to collect damages for defective product, the product must be
unreasonably dangerous for the intended use.
Rationale: The court found that the bullet was no defectively designed because it
performed exactly as designed. The very nature of a bullet is to be dangerous. The
court dismissed the risk/utility test because the risks caused arose from the function of
the product and not due to any defect.
Holding: Judgment for ∆ affirmed.

h. Foreseeable injury creates liability

Price v. Blaine Kern Arista, Inc.

Facts: Performer was injured while wearing mask made by the ∆. The mask
resembled former Pres. H.W. Bush, was heavy. П was pushed from behind during a
performance and suffered injury to his neck. П alleged that the mask was defectively
designed.
Rule: When an injury due to a design defect is foreseeable, a manufacturer may be
held liable.
Rationale: The court found that the actions of the third-party was foreseeable, and
therefore the chain of causation was unbroken.
Holding: SJ for ∆ reversed.

i. Unforeseeable cause of injury relieves liability

Rodriguez v. Glock, Inc.

Facts: п’s decedent was killed during a struggle with an off-duty police officer which
resulted in a struggle to gain possession of a handgun. The п alleges that the lack of a
safety, and the gun’s short trigger pull was a defective design.
Rule:
Rationale:
 Holding: SJ for ∆.

D. FAILURE TO WARN

a. Failure to warn when knowledge is not well known

American Tobacco Co. v. Grinnell

Facts: п’s decedent began smoking in 1952 and later developed lung cancer and died
in 1985. Пs continued his suit for wrongful death and failure to warn. Пs alleged ∆
concealed facts that it knew or should have known that smoking could result in
addiction and death.
Rule: A manufacturer is required to give an adequate warning if it knows or should
know that potential harm may result from the use of its product. In the absence of a
warning, a rebuttable presumption arises that the user would have read and heeded
such warnings.
Rationale: The court found that it was common knowledge that the ill effects of
smoking were common knowledge, and therefore, there was no duty to warn.
However, the knowledge of the addictive qualities of smoking was not well known.
As a result, there was a duty to warn on that point. The court looked to the fact that
decedent was warned about the dangers of smoking but continued anyway.
Holding: For п on allegation of failure to warn of addictive properties of smoking.

b. Presumption п may heed warning may be rebutted by sufficient evidence to the

contrary

Graves v. Church & Dwight

Facts: п awoke one night with heartburn and proceeded to drink a concoction of
baking soda and water. After drinking, the mixture combined with his stomach acid
and caused his stomach to explode. П sued alleging a failure to warn of the possible
consequence of ingesting this product.
Rule: The presumption that a п may heed a warning may be rebutted by evidence that
п would have ignored such a warning.
Rationale: The court looked to proof that the п smoked despite knowledge of
Surgeon General’s warning concerning the health hazards of smoking.
Holding: Judgment for ∆ affirmed.

c. Unusual risk does not relieve duty to warn

Brown v. McDonald’s Corp.

Facts: п developed severe reaction after eating ∆’s non-meat sandwich. П was
severely allergic to seafood. ∆’s sandwich contained an ingredient derived from
seaweed. ∆ claimed that it made available to its customers information regarding the
ingredients. ∆ also alleged that there was no risk posed to ordinary consumers and
therefore, there was no duty to warn.
Rule: Ann unusual risk of harm does not relieve a ∆ of its duty to warn.
 Rationale: The court found that the unusual nature of the risk does not relieve the ∆
of a duty to warn. Here, the defendant did not win a damage award, but rather the
right to have a jury decide the issue.
Holding: SJ for ∆ reversed.

d. Duty to Warn when danger open and obvious

Uloth v. City Tank Corp.

Facts: п lost hand when operating meat grinder manufactured by ∆. Grinder had
safety guard which was removed. ∆ did not initially provide warnings as to the
dangers of removing this guard. ∆ learned of this practice, and began to provide
warnings about such removal.
Rule: A manufacture may have a duty to warn even if the danger was obvious.
Rationale: The court reasoned that the nature of a danger may be open and obvious
but a product user deserves a right to be warned of a danger and that there is a safer
way to use the product.
Holding: Judgment for п affirmed.

e.

Liriano v. Hobart Corp.

Facts:
Rule:
Rationale:
Holding:

f.

Freeman v. Hoffman-LaRoche
Facts:
Rule:
Rationale:
Holding:

g.

Brooks v. Medtronic, Inc.

Facts:
Rule:
Rationale:
Holding:

h.

Stanback v. Parke, Davis, and Co.

Facts:
 Rule:
Rationale:
Holding:

i.

Perez v. Wyeth Laboratories

Facts:
Rule:
Rationale:
Holding:

j.

McMahon v. Bunn-O-Matic Corp.

Facts: п burned by coffee when
Rule:
Rationale:
Holding: SJ for ∆ affirmed.

k.

Liebeck v. McDonald’s Corp.

Facts:
Rule:
Rationale:
Holding:

Torts 3 14 08

DEFAMATION

A. Defining Defamatory

defamation, n. 1. The act of harming the reputation of another by making a false statement to a third
person. • If the alleged defamation involves a matter of public concern, the plaintiff is
constitutionally required to prove both the statement's falsity and the defendant's fault. 2. A false
written or oral statement that damages another's reputation.

The law of defamation protects the п’s reputation and good name against damage done
by false statements.
Libel Slander
[1] Publication [1] Publication
[2] Defamatory [2] Defamatory
[3] Written or printed words [3] Spoken words or gestures
[4] Statement to a third party [4] Statement to a third party
 [5] Of and concerning the п [5] Of and concerning the п
[6] Potentially harmful to reputation (modifies form [6] Potentially harmful to
of pub) reputation (modifies form of pub)

§ 568. Libel and Slander Distinguished

(1) Libel consists of the publication of defamatory matter by written or printed words,
by its embodiment in physical form or by any other form of communication that has
the potentially harmful qualities characteristic of written or printed words.
(2) Slander consists of the publication of defamatory matter by spoken words,
transitory gestures or by any form of communication other than those stated in
Subsection (1).
(3) The area of dissemination, the deliberate and premeditated character of its
publication and the persistence of the defamation are factors to be considered in
determining whether a publication is a libel rather than a slander.

General rule for libel: A п who has been libeled can recover general damages; this
means that damages are presumed without any particular proof of how the п was harmed
by the libel or to what extent.

In slander, damages must be specifically proven.

Slander per se:

1) Utterances charging п with criminal misconduct, usually involving moral turpitude
2) Statements that the п has a loathsome disease
3) Claims of sexual misconduct on the п’s part
4) Words bearing on the п’s fitness for his occupation

Per se: evident on its face

Per quod: Requiring reference to additional facts

a. Words must affect right thinking people to be actionable

Grant v. Readers’ Digest Association

Facts: п was a Massachusetts lawyer living in that state. ∆ published a periodical for
general circulation, read by lawyers, judges and the general public. The article
suggested that п was a legislative representative of the Mass. Communist Party.
Rule: For an opinion to ba actionable, the words used must be such as would so
affect “right-thinking” people.
Rationale: The court considered what the meaning of the passage might have been.
Despite the innuendo that the п was a sympathizer of the Communist Party. The court
found that the difference between being called a “communist” and being accused of
being a sympathizer is distinctive. The latter is less harmful.
Holding: Judgment for п reversed and remanded.

b. Mere name calling is not actionable

 Stevens v. Tillman
Facts: п was principal of local elementary school. ∆ was political opponent who
successfully campaigned to remove her from office. ∆ called п a racist. П, in turn,
called ∆ a racist and then brought this suit.
Rule: Statements that are mere name calling are not actionable.
Rationale: The court reasoned that accusations of racism was no longer harmful due
to overuse. At that time it was the equivalent of a slap in the face.
Holding: Judgment for affirmed.

c. п must show that statement was actually defamatory

Dilworth v. Dudley
Facts: ∆ published a book on Mathematics about Mathematical Cranks. The term was
used to identify people that fell onto a spectrum of personalities that range from not
really cranks to full blown cranks. Those people were defined as persons who believe
that they had the truth that it is revolutionary and mathematicians are involved in a
conspiracy to suppress it.
Rule: A п must show as part of its prima facie case that the ∆’s statement was
defamatory.
Rationale: The court looked to what the term crank really stood for. It found that
crank was actually a colorful way to expressing disagreement with another’s master
idea. Here, the statement referred to the п’s beliefs and not to him personally.
Therefore, they were not actionable.
Holding: Judgment for ∆ affirmed.

d. Repetition of libel is actionable

Wildstein v. New York Post Corp.

Facts: A man was murdered. ∆ published a story which stated that several persons of
interest and described as associated with the man were to be interviewed. П was
identified as one of those persons. The п brought suit claiming that the story implied
that she was having an improper relationship with the deceased.
Rule: One who repeats a libel is responsible for the damage caused.
Rationale: The court found that the use of quotation marks around associated might
be found by a jury to have an inverted meaning to the public.
Holding: ∆’s Motion to Dismiss denied. For п.

e. Statements must be found to be defamatory in light of the audience it is

communicated

Saunders v. Board of Directors, WHYY-TV

Facts: п was an inmate at a Delaware correctional facility. ∆ published story about a
search of the prison and characterized п as an alleged FBI informant. The п had
received death threats and physical injuries due to the story.
 Rule: Statements made by a ∆ for the general public, and not to a specific community
where п contends it is defamatory is not actionable.
Rationale: The court stated that it is not one’s reputation in a limited community that
defamation is designed to protect.
Holding: SJ for ∆.

f. Statements made to a community that affects one’s reputation is actionable

Braun v. Armour & Co.

Facts: ∆ ran advertisement naming п as a dealer of their Star bacon. П sold only
Kosher meats and took offense.
Rule: Statements made by a ∆ to a general community where п contends it is
defamatory is actionable.
Rationale: The court found that the п had a reasonable claim because of the nature of
the statement and the community the statement was made to.
Holding: Judgment for п.

(For e and f)
Test: substantial and respectable minority

g. Statements must apply directly to the п

Louisville Times v. Stivers

Facts: A judge named Stivers was assassinated to prevent him from testifying in a
trial involving members of the Baker family. ∆ published an account of the story
about the family feud that had lasted over 50 years. It went on to imply that Baker
was the last of the family that survived the 50 years of fighting with guns and fists.
Rule: A must be able to show that he is the target of a publication and that he is the
one defamed.
Rationale: The court found that the nature of the defamation extended to the whole
clan and not specifically to the п.
Holding: Judgment for п reversed.

h. If п can prove that statements apply to him, a claim may be had

Gross v. Cantor
Facts: п was famous radio personality and comedian. He sent a telegram to Radio
Guide magazine claiming that all but one critic in New York were a disgrace to the
profession. П brought suit alleging that there were only 12 critics in the area, of
which he was one, and that ∆ had identified the one exception
Rule: When a comment may reasonably import a charge against several individuals,
under some general description or name, the п has a right to trial.
Rationale: The court found that the evidence presented a possibility that the п could
prove that he was included in the defamed group of persons.
Holding: Judgment for ∆ reversed.
§ 564A. Defamation of a Group or Class

One who publishes defamatory matter concerning a group or class of persons is

subject to liability to an individual member of it if, but only if,
(a) the group or class is so small that the matter can reasonably be understood to refer
to the member, or
(b) the circumstances of publication reasonably give rise to the conclusion that there
is particular reference to the member.
Comment: a. As a general rule no action lies for the publication of defamatory words
concerning a large group or class of persons. Unless the group itself is an
unincorporated association, as to which see § 562, it cannot maintain the action; and
no individual member of the group can recover for such broad and general
defamation. The words are not reasonably understood to have any personal
application to any individual unless there are circumstances that give them such an
application. The extreme example is the statement of David that “All men are liars,”
which in a sense defames all mankind and yet could not reasonably be taken to have
any personal reference to each member of the human race. On the same basis, the
statement that “All lawyers are shysters,” or that all of a great many persons engaged
in a particular trade or business or those of a particular race or creed are dishonest
cannot ordinarily be taken to have personal reference to any of the class.
d. Even when the group or class defamed is a large one, there may be circumstances
that are known to the readers or hearers and which give the words such a personal
application to the individual that he may be defamed as effectively as if he alone were
named. Thus “All lawyers are shysters” may be defamatory as to an individual
lawyer, when the words are uttered on an occasion when he is the only lawyer present
and the context or the previous conversation indicates that the speaker is making
personal reference to him.

B. Publication
Publication is a term of art referring to any communication of the utterance to a third
person.

§ 577. What Constitutes Publication (see p 620)

(1) Publication of defamatory matter is its communication intentionally or by a

negligent act to one other than the person defamed.
(2) One who intentionally and unreasonably fails to remove defamatory matter that he
knows to be exhibited on land or chattels in his possession or under his control is
subject to liability for its continued publication.

a. A computer services provider may not be held libel for defamation

Zeran v. America Online, Inc.

 Facts: п was victim of hoax stating that he made available inappropriate t-shirts in
the aftermath of the Oklahoma City bombings posted on AOL.
Rule: A computer service provider may not be held liable for libel in a publisher’s
role.
Rationale: The general rule is that distributors may not be held liable for defamatory
statements contained in materials that they distribute if they are aware of the
statements on which the libel is predicated. The court found that each alleged instance
of defamatory statement was a publication. Therefore, AOL was legally considered to
be a publisher and could not be held responsible.
Holding: SJ for ∆.

C. Defenses

1. Conditional Privileges
Conditional privilege – privilege that exists based upon the situation. It immunizes
conduct that, under ordinary circumstances, would subject the actor to liability.
Common Interest privilege – a privilege that results from the existence of a common
interest between/among the participating parties. This may be abused in cases of bad
faith, or for malicious purposes.
Excessive publication – when the means used to convey the information is not narrowly
tailored to achieve the appropriate goals.

a. Exceeding moral/social duty creates liability

Watt v. Longsdon
Facts: ∆ shared information regarding п’s alleged conduct with п’s wife, the
chairman of the company’s board of directors, and Browne. П’s wife divorced him
and the company fired him.
Rule: One is not libel for defamation if he is acting on the basis of a social or moral
duty, however, that privilege does not apply when that duty is exceeded, or in the act
of malice.
Rationale: The court found that ∆ had a duty to convey the information to Singer and
Browne, however, there was no duty to provide this information to п’s wife. In the
case of the wife, such a duty depends upon the circumstances, nature of the
information, and the relation of the speaker and the recipient.
Holding: Judgment for ∆ reversed.

b.
Flowers v. Smith
Facts:
Rule:
Rationale:
Holding: Judgment for ∆ reversed.
c.
Randolph v. Beer
Facts:
 Rule:
Rationale:
Holding:

§ 594. Protection of the Publisher's Interest

An occasion makes a publication conditionally privileged if the circumstances induce

a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the publisher,
and
(b) the recipient's knowledge of the defamatory matter will be of service in the lawful
protection of the interest.

Illustration: 1. A sees B, a stranger, about to drive off in a car that appears in every
particular to be A's car. A calls to a policeman to prevent B from stealing his car. The
privilege applies although the car actually belongs to B.

§ 595. Protection of Interest of Recipient or a Third Person

(1) An occasion makes a publication conditionally privileged if the circumstances
induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the recipient or
a third person, and
(b) the recipient is one to whom the publisher is under a legal duty to publish the
defamatory matter or is a person to whom its publication is otherwise within the
generally accepted standards of decent conduct.
(2) In determining whether a publication is within generally accepted standards of
decent conduct it is an important factor that
(a) the publication is made in response to a request rather than volunteered by the
publisher or
(b) a family or other relationship exists between the parties.

Illustration: 1. A sees a man whom he erroneously believes to be B, a chauffeur of

C, taking his family for a drive, in a car that A supposes to belong to C. A belongs to
the same golf club as C and writes to C informing him that B, his chauffeur, has been
using his car to take his wife and children for drives. The publication of this
defamatory matter is not privileged, although it would be if C had said to A, “I hear
my chauffeur is using my car without my permission to take his family out. Do you
know anything about it?”

§ 602. Publication of Defamatory Rumor

One who upon an occasion giving rise to a conditional privilege publishes a

defamatory rumor or suspicion concerning another does not abuse the privilege, even
if he knows or believes the rumor or suspicion to be false, if
(a) he states the defamatory matter as rumor or suspicion and not as fact, and
 (b) the relation of the parties, the importance of the interests affected and the harm
likely to be done make the publication reasonable.

§ 604. Excessive Publication

One who, upon an occasion giving rise to a conditional privilege for the publication
of defamatory matter to a particular person or persons, knowingly publishes the
matter to a person to whom its publication is not otherwise privileged, abuses the
privilege unless he reasonably believes that the publication is a proper means of
communicating the defamatory matter to the person to whom its publication is
privileged.
Illustrations:
1. A, a director of a bank, on his way to a meeting of the directors, while walking in
the lobby where a number of depositors are present, in a loud voice says to a fellow
director that he suspects the cashier of dishonesty. A has abused the privilege.

2. A, from a hotel window, shouts to a policeman in the street to come at once to

prevent a murder in an adjoining room of the hotel. A has not abused the privilege.

2. Absolute Privileges

a. Not judicial immunity when acting outside of normal capacity

Roush v. Hey
Facts: Judge presiding over a divorce went onto the court’s website stating her
reasons for recusing herself from the case. She stated that the
Rule: Judicial immunity is not allowed when a judge makes a potentially defamatory
statement while acting outside the normal function of a judge, and the parties were
not dealing with the judge in a judicial capacity.
Rationale: The court found that the judge was acting outside of her judicial capacity,
and acting outside of her normal duties.
Holding: Judgment for ∆ reversed.

a. problem

Yoder v. Workman
Facts:
Rule:
Rationale:
Holding:

b. Defamatory assertion cannot be supported by information after the fact

Beggarly v. Craft
Facts: ∆ made untrue comments about п’s moral character to her landlord in an
attempt to oust her from the building. Substantiating proof surfaced two months later.
 Rule: Facts that occur after a statement has been made may not be used to support an
assertion made prior.
Rationale: The court refused to allow the evidence into consideration because it
occurred after the actual allegation.
Holding: Judgment for п affirmed.

c. No damages when reputation is already poor

Guccione v. Hustler Magazine, Inc.

Facts: п was subject of article that was accompanied by a photo of him with nude
models. ∆ published article questioning whether п would have allowed his wife or
mistress to pose in such a way.
Rule: Where an alleged libelous statement cannot realistically cause impairment of
reputation due to п’s already questionable reputation, no damages will be awarded.
Rationale: The court found that the statements were in fact true and that п’s
reputation was already consistent with the alleged libel.
Holding: Judgment for п reversed.

d.

Buckner v. Spaulding
Facts:
Rule:
Rationale:
Holding:

§ 581A. True Statements

One who publishes a defamatory statement of fact is not subject to liability for
defamation if the statement is true.

Comment:
a. To create liability for defamation there must be publication of matter that is both
defamatory and false. (See § 558). There can be no recovery in defamation for a
statement of fact that is true, although the statement is made for no good purpose and
is inspired by ill will toward the person about whom it is published and is made solely
for the purpose of harming him.

Several states have constitutional or statutory provisions to the effect that truth of a
defamatory statement of fact is not a defense if the statement is published for
“malicious motives” or if it is not published for “justifiable ends” or on a matter of
public concern. There have been rulings that a provision of this type is
unconstitutional, because it is in violation of the First-Amendment requirements of
freedom of speech and of the press, and its validity is very dubious. As to an action
 for violation of the right of privacy by giving unreasonable publicity to details of the
private life of another, see § 652D.

b. At common law the majority position has been that although the plaintiff must
allege falsity in his complaint, the falsity of a defamatory communication is
presumed. It has been consistently held that truth is an affirmative defense which
must be raised by the defendant and on which he has the burden of proof. The
practical effect of this rule has been eroded, however, by the recent Supreme Court
holdings that the First Amendment to the Constitution requires a finding of fault on
the part of the defendant regarding the truth or falsity of the communication. Pending
further elucidation by the Supreme Court, the Institute does not purport to set forth
with precision the extent to which the burden of proof as to truth or falsity is now
shifted to the plaintiff. See the Caveat to § 613, and Comment j.

Torts 3 28 08

DEFAMATION cont’d
Actual Malice – Clear and Convincing proof

What’s a public figure?

Proxmire
Wolston
Dameron
Clyburn
What’s actual malice?
St. Amant
Masson
Kaelin
Meisler
Martin
Categories of defamation пs
• Public Official or Figure/Public Speech

NYT

• Private Person/Public Speech

Gertz

• Private Person/Private Speech

Public concern - Societal concern/affects proportional number of persons

Common Law
 FIRST AMENDMENT (1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.

New York Times v. Sullivan

Facts: п was elected official in Alabama in 1964. ∆ published article concerning a
civil rights demonstration stating that polices “ringed” the Alabama State Campus,
the dining hall was padlocked, and that Dr. King had been arrested 7 times. The
alleged defamation by п was that he was indirectly defamed by the incorrect
references in the article.
Rule: A State cannot, under the First and Fourteenth Amendments, award damages to
a public official for defamatory falsehood relating to his official conduct unless he
proves "actual malice"--that the statement was made with knowledge of its falsity or
with reckless disregard of whether it was true or false.
Rationale: Public officials The court looked to the issues at hand being a public
issue, and the criticism of a public official. The former truth standard was found to
risk the effect of self-censorship. This type of rule therefore, would dampen the vigor
and limits the variety of public debate. The court quoted Madison who said “the
censorial power is in the people over the Government, and not in the government over
the people.”
Holding: Judgment for п affirmed, and then reversed by Supreme Court.

Curtis Publishing Co. v. Butts

Facts:
Rule:
Rationale:
Holding:

Hutchinson v. Proxmire
Facts: п was
Rule:
Rationale:
Holding:

Wolston v. Reader’s Digest Association

Facts:
Rule:
Rationale:
Holding:

Clyburn v. News World Communications

Facts:
Rule:
Rationale:
 Holding:

Gertz v. Robert Welch

Facts: Police officer shot and killed a young man. He was convicted of 2nd degree
murder. Gertz was hired to bring civil suit for damages against officer. ∆ published
article claiming that Gertz was a Communist among other things.
Rule: (1) The standard of liability for a private п may be determined by the individual
states so long as they do not impose strict liability.
(2) A private defamation п who establishes liability may recover only actual damages.
Rationale: The court looked to the difference between public and private individuals.
Specifically, the ability of each to defend against defamatory statements. It found that
private individuals are more susceptible to such an injury. Those who enter the public
eye invite attention and comment.
Holding: Judgment for ∆ reversed and remanded.

NYT standard is brought over to presumed and punitive damages at the state level.

Negligence in Gertz Cases

Standard of Care Relevant Factors
SPLIT - (1) Time element: more immediate
decision is made = decreased
responsibility
(1) Custom: Journalism is a profession, (2) Relationship b/w story and issues of
and п must have an expert public concern
(2) Basic Reasonable Person (jury has (3) Likelihood of harm
wide discretion to determine what is and (a) level of distribution
is not reasonable) (b) defamatory content

Dun & Bradstreet, Inc. v. Greenmoss Builders. Inc.

Facts: ∆ (Dun) issued incorrect credit report showing that п had filed for bankruptcy.
Rule: In a matter of private concern, a private п may be awarded presumed and
punitive damages absent a showing of actual malice.
Rationale: First Amend. Does not matter in cases of private party/private concern.
Holding: Judgment for п.

Philadelphia Newspapers v. Hepps

Facts:
Rule: п cannot recover unless it can prove false statement of fact.
Rationale:
Holding:

Burden of Proof on Truth Issue

Common Law (private person/private speech): ∆ must prove truth defense
Public Official/Public Speech: п must prove falsity of statement by clear and
convincing evidence
Private Person/Public Speech: п must prove falsity of statement; exact burden unclear
Milkovich v. Lorain Journal Co.
Facts:
Rule:
Rationale:
Holding:

Fact v. Opinion Divide

Milkovich
Flamm
Phantom
Stevens
Mr. Chow v. New York

Defamation Elements in Constitutional Realm

(1) Publication
(2) “Of and concerning” the п
(3) Defamatory meaning
(4) Actual malice or negligence (depending on category)
(5) Falsity of statement