Torts II Outline I. Damages A. Medical Expenses 1.

Primary theory is compensation return plaintiff to pre-tort position including paying for medical bills. 2. Burden of proving damages is on the plaintiff preponderance of the evidence proving certainty is on the plaintiff. Ex. I am a law student who gets run over by a car, who knows my earning capacity at this time. 3. Who determines them? Jury question judge instructs and leaves it to the jury 4. Usually use experts to testify at trial regarding damages. 5. Medical expenses are considered special damages. 6. You only have one time shot. Ex. If you think you are going to need a nursing home in the future you better prove it now. 7. Common issues: a. Measurement how can you predict the future? Expert testimony is important here. They can testify to the problems that people with this type of injury have in the future. 1) Policy: If I dont prove it I dont get any money, but if I do prove I might need surgery and dont end up needing that surgery then I end up ahead, however conversely if I end up needing a surgery and dont prove it then I will have to pay for it out of my own pocket. 2) Discount future tangible damages (ex. Medical and loss of earnings) to current value. 8. Collateral Source Rule Sometimes there is a third party who has to pay, mostly the insurance companies. This does not lessen the obligation of the tortfeasor. They still owe you money, however if you do get the money most insurance policies say that you have to pay them back. Does not cover gratuitous care. a. Subrogation language if you get money then we get it 9. Generally no recover for business losses 10. Taxation a. Taxable: 1) Punitive damages 2) Pure mental harm 3) Pain and suffering/lost earnings some say that fall into here and are taxable because they dont fall into physical injury or sickness or b. Not Taxable: 1) Physical injury or sickness [clearest being medical expenses] 2) Pain & Suffering/lost earnings some say fall into here and are not taxable but some say they are B. Medical Expenses Special Damages 1. How to Prove a. Burden on the plaintiff by a preponderance of the evidence 1) Past doctor bills (use the physical bill as evidence)

2) Future often expert testimony (need for nursing home) 2. Reasonableness issues a. Duty to mitigate b. Reasonable injury related expense ex. cant get nose job for broken leg c. Some courts see holistic, herbal, chiropractic as reasonable medical care 3. How to calculate a. Discount discount future tangible damages (ex. medical and loss of earnings) to current value C. Lost Earnings Special Damages 1. Plaintiff is seeking to recover for both the earnings actually lost up to the time of the trial and the diminution of their capacity to earn in the future. 2. Proof: a. Past lost earnings (pay stubs) b. Future lost earnings (more difficult) 3. Variables used to determine diminished capacity are: a. the plaintiffs basic earning capacity b. the percentage by which the plaintiffs earning capacity has been diminished c. the expected duration of the disability d. the life expectancy of the plaintiff if the disability is permanent 4. Basic Formula: a. Determine 1) Life expectancy 2) Interest rate 3) Yearly wages 5. Test: Is the economic horizon of the disabled person less broad then it was before the accident? (Holton v. Gibson) 6. Cant bring claims for future injuries that are merely possible and not probable (Mauro v. Raymark Industries) 7. The jury needs to assess not so much future earning capacity but more the opportunities for a practical chance at such an earning capacity. Example: Opera singer (Grayson v. Irvmar Realty Corp.) D. Property Damages Special Damages 1. How to prove take pictures and show at trial 2. How to calculate a. Fair market value sentimental value not relevant lesser of the cost to repair or replace. E. Pain and suffering General Damages 1. SPLIT AUTHORITY on whether pain and suffering should be calculated. 2. When available: a. Physical pain is a component b. Most courts say that you have to be conscious and feeling the pain in order to get a pain and suffering award. 3. How to prove: 4. How to calculate: a. You can look for loss of enjoyment for specific activities

5. A jury should not be instructed to consider an award damage for loss of enjoyment of life separately from damages for pain and suffering. (McDougald v. Garber) 6. It is the job of the jury to figure out what the number is for damages, however the judge can overrule it is shocks the conscious of the court. D. Punitive Damages 1. Should there be punitive damages in the first place? a. We have a criminal system in torts you are supposed to compensate and not punish like in the criminal system. b. Windfall to plaintiff they have already been compensated and are still getting more money. c. Jury prejudice they are just trying to make big corporations suffer. 2. BIG MAJORITY ALLOWS PUNITIVES!! 3. When is plaintiff eligible to try and prove punitives? a. When defendant has been really bad b. State of mind: not just negligence (must be worse then negligence). Defendant must have tort intent or evil motive. c. This doesnt mean that you cant get damages in a negligence claim but the state of mind must be worse then negligence. d. Most states also allow punitives for reckless state of mind. e. Split on burden of proof: Some states say burden of proof should heighten to clear and convincing. Some states say that since we are punishing similar to a criminal case the burden of proof should be heightened to beyond a reasonable doubt. f. MOST STATES: Burden of proof should still be a preponderance of the evidence. 4. Courts are constitutionally required to exercise real review of punitive awards. 5. How does a jury assign a number? a. There is no formula b. Potential tort defendants have to be on fair notice on what type of exposure they are going to get. c. Juries must be given guidance/factors to consider d. Typical factors: Defendants badness (behavior and state of mind), how much defendant punished already, defendants wealth, any profit that defendant received from behavior, amount of compensatory damages. 6. Wrongful death statutes Allows recovery when tortious conduct of the defendant causes someones death. Basic method of recovery the harm caused to the decedents family by the defendants conduct (i.e. mental anguish, grief) 7. Survival statutes Prevent abatement of existing actions due to the death of either party (once you die your claim dies with you). Basic method of recovery What the plaintiffs decedent would have been able to recover had the plaintiff survived. 8. Supreme Court has ruled that the excessive fines clause in the 8th Amendment does not bar punitive damages. 9. Nature of Liability

a. Personally liable for punitive damages not insurable b. not joint and severally liable for punitive damages c. Not vicariously liable for punitive damages II. Products Liability A. Three types of defects: 1. Marketing defects include failure to instruct regarding proper product use and failure to warn of hidden dangers. Ex. There is a certain problem with this batch of cars. a. Test for marketing defects It needs to be a thing of danger and there is an added knowledge that the thing will be used by persons other then the person, and irrespective of new tests the manufacturer of this thing of danger is under a duty to make it carefully. (Macpherson v. Buick Motors) 2. Design defects Shared by each unit in the product line. Maybe the product was badly designed (bigger stakes for the defendant). 3. Marketing/warning Maybe the factor hasnt instructed you properly on about the product. d. REMEMBER THAT A PRODUCT CAN HAVE MORE THEN ONE DEFECT AND YOU CAN CLAIM MORE THEN ONE CLAIM!!! 2) You dont need to pick one theory: a. Negligence failure to use reasonable care regarding; manufacturing/quality control and/or design and/or marketing (instructions/warning) 3) Defendant usually multiple defendants (look at whole causal chain) - Retailer - Distributor/wholesaler if any - Manufacturer - Any component part manufacturer - Any outside/designer B. Negligence Product Liability Claims 1. Types of transactions no limits 2. Plaintiffs no limits (must be foreseeable); privity not required anymore 3. Defendants no limits (anyone in chain, although it is difficult to prove that the retailer was negligent. 4. Prima facie case a. Normal negligence rules b. Breach of duty of reasonable care regarding manufacturing and/or design and/or marketing c. Can use res ipsa to prove. d. In fact and proximately causing harm to plaintiff 5. Defenses a. Normal negligence defenses including comparative negligence 6. Normal tort damages 7. Especially helpful for: non sales transactions, non goods transactions, non merchant defendants C. Warranty Product Liability Claims; Contract Theory

1. Warranty (contract claims) one or more of the 3 kinds of warranties have been breached, causing harm to plaintiff; a. Express Warranty oral, pictorial b. Implied Warranty of Merchantability - they are fit for their ordinary purpose. Example: Toyota sells a car, its ordinary purpose is driving. c. Implied Warranty of Fitness for Particular Purpose goods are fit for an unusual purpose. Example: Go to Toyota and buy a car for drag racing purposes. 2. Types of transactions sales of goods only 3. Plaintiffs no limits (must be foreseeable); privity generally not required, 2318 of the UCC 4. Defendants anyone in chain; for implied warranties defendant must be merchant 5. Prima facie case a. Warranty exists b. It was breached c. In fact and proximately causing harm to plaintiff 6. Defenses a. Disclaimer (conspicuous, magic words = as, big type up at the front) b. Limitation of remedies (cant exclude a personal injury remedy for consumer goods) - Example: has words like limited warranty for one year and we will replace or repair it at our option 7. Damages a. Contract damages b. Business losses are possible c. Pain and suffering sometimes shaky 8. Especially helpful for: damages including business losses, longer statute of limitations (could be up to 4-6 years), express warranty breached the otherwise no defect D. Strict Liability/402 A claims 1. Who can be a plaintiff? a. No limits besides foreseeability (privity requirement gone) 2. Who can be a defendant? a. Majority: Defendant must be in the business of selling or distributing goods. Does not necessarily mean that it has to be a merchant. i. General rule: Each seller in the chain has a right of indemnity against those sellers higher up the chain. b. Minority: Retailer can only be defendant when you cant get manufacturer 3. Transactions a. A sale or other distribution of goods; includes lease, bailment, promo giveaways; product doesnt include packaging b. SPLIT AUTHORITY ON USED GOODS c. Not pure services transactions SPLIT AUTHORITY ON MIXED TRANSACTIONS (Example: goods and services perm turns your

hair green; was it the beauty salons fault or was it the chemicals that were put in your hairs fault) Look at how skilled the service provided is. 4. Prima facie case a. Defect standard varies depending on type of defect: 1) For manufacturing defect consumer expectations test Product has a manufacturing defect, departs from intended design, in way which makes product not fulfill expectations of typical consumer of it, causing right kind of harm. 2) For warning defect Majority: Defendants warning doesnt cover foreseeable non-obvious risks defendant knows or should know of and/or isnt SEE BELOW 3) For design defect Majority: Risk Utility test SEE BELOW b. Causation: 1) The actual cause and proximate cause requirements apply in products liability cases regardless if the theory relied on negligence, warranty, or strict liability in tort, and regardless of the defense. 2) Plaintiff must show that the product was distributed by the defendant and that but for that defect, the accident would either not have happened, or would not have been so harmful to the plaintiff. 3) Must also show that the resulting injury was within the range of foreseeable risks created by the defect???????????? (ask professor Daggett) 4) Sometimes the court will recognize a third person as an efficient intervening cause. 5) Expert testimony is very important in proving causation 6) Conduct has to be somewhat connected to the purpose of the product (Union Pump Co. v. Albritton) 7) Collective Cause in Fact and Market Share Liability may be allowed by some jurisdictions when there are more than one possible defendants. 8) Policy: - Positive plaintiffs harm is real, plaintiff is innocent, consumers cant protect themselves, encourages carefulness - Negative hampers ingenuity, floodgates, raises costs of products, goes too far and some defendants are held liable unfairly. Encourages bad B<PL c. Harm 5. Defenses a. Assumption of the risk if you use a defective product you know is defective [is a defense in a majority] (looking at the subjective thoughts of plaintiff) 1) Knowing and 2) Voluntarily agreeing to expose oneself to a risk. b. No consensus on comparative negligence

c. Minority: Comparative causation they have the plaintiff go back to proximate cause instead of using comparative causation. (Murray v. Fairbanks Morse) G. Warning defects 1) Prima facie case a. Product has a warning/instruction/marketing defect b. Which in fact; Cause in fact twist; MAJORITY allows plaintiff a rebuttable presumption that if warning would have been there plaintiff would have read and heeded it. c. Proximately caused d. Plaintiff harm 2) Warn about what risks? a. Risks that are foreseeable, not obvious the product itself is the warning, defendant knew or should have known about focuses on foreseeability (similar to negligence analysis) b. Overall Minority Consumer expectations test: Did this product with whatever warnings/instructions meet the expectations of the typical consumer of the product? 3) Warn whom? a. Foreseeable users or consumers the people who are going to use the product. - MAJORITY: Exception is prescription drugs duty to warn runs to the prescribing doctor and the pharmacist, they are termed to be learned intermediaries. Includes birth control pills (MacDonald v. Ortho Pharmaceutical). - MINORITY: There is a duty to the pharmaceutical companies to warn consumer including prescription drugs that have real risks and are used for the long term without medical supervision. 4) Warn how? a. In a reasonable way b. Considering the audience c. Plain language d. Conspicuous e. Identify risks and consequences 5) A defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art, evidence that the particular risk was neither known or knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. (Anderson v. Owens-Corning Fiberglass Corp.) H. Design defects 1) Shared by each unit in the product line 2) MAJORITY: Risk utility analysis as designed, compare products utility with its risks (size and magnitude). Ex. How useful are the saws with the guide fence being removed and what are the risks that he is going to be hurt by this? a. B < PL like b. Is there an alternative safer design?

c. Often requires expert testimony d. Is that alternative design feasible? e. Economical Was it economically feasible to use the safer design? f. Technological Was a technologically safer design feasible? 3) If risks outweigh utility as design and there is a feasible safer design, design defect is proved (do causation and harm) 4) MINORITY: Consumer expectations test as designed is the product dangerous beyond the expectations of a typical consumer of the product? a. Consumer expectations test is reserved for cases in which the everyday experience of the products users permits a conclusion that the products design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. (Soule v. General Motors Corp.) b. May or may not use an expert testimony regarding consumer expectations test, usually this is jury turf. 5) Flawed design cases If the plaintiff could show that the design caused the product to fail to perform its intended function if the design was self-defeating in a dangerous way as to cause injury courts would treat the design defect the same way as if it was a manufacturing defect. 6) Patent danger rule There would be no liability for injuries caused by an obvious risk created by a products design. 7) Express warranty case the seller has expressly warranted that the product would perform safely and not cause injury to the plaintiff. 8) In order to determine if a product is unreasonably dangerous, a product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. (Vautour v. Body Masters Sports Industries) Negligence Warranty (UCC2) Strict Liability Transaction No limits Sales of goods Sale or Distribution of goods Plaintiffs Must be Maj: Must be Must be foreseeable, foreseeable- privity foreseeable, Privity Privity not required not required not required Defendants No special limits For implied The Chain warranties, must be manufacturers, merchant deal or wholesalers, hold self out as retailers, etc. in the having expertise in business of selling goods of this kind that good [WA go directly after the manufacturer unless you cannot determine or locate] Prima facie case Breach of duty (e.g. Existence and Defective product; unreasonable design breach of warranty; Causation x 2; harm

Defenses

or manufacturing process, or instructions); Causation x 2; harm Normal negligence defenses (e.g. CPN)

Causation x 2; harm

Damages Especially helpful for

Normal tort damages - Non merchant defendants - defect in services

Disclaimer (must be conspicuous and use magic words) Limitation of remedies (exclusion of Plaintiff remedy for consumer goods) Normal contract damages - recovery for business/economic damages - longer S/O/L - nondefective product but express warranty breached

Assumption of risk; Comparative Negligence split authority

Normal tort damages - when a defective product causes injury

I. Liability Insurance 1. The insurance company and the insured enter into a contract whereby in exchange for the premium paid by the insured, the company agrees to defend any claim against the insured covered by the policy and to pay the claimant any amount, up to the limits stated in the policy. 2. Insured obligations a. Notify insurance company of claim b. Cooperate in resolving claim 3. Insurer obligations a. Defend the claim b. Pay the judgment up to the policy limits 4. Typical insurer rights under the policy a. Choose the defense attorney (Insurance defense firms) b. Make settlement decisions 5. Who is the client? a. Insured b. But the insurer pays the bill and makes the big decision. 6. Who are the parties? a. Plaintiff v. Insured; Policy: Juries dont look too kindly on big insurance companies. b. MINORITY: Permits direct action against insurer c. MAJORITY: Only allows direct action if the insurer refuses to pay the bill. 7. Parties and ethics

a. The client is, in some ways, both the insured and the insurer. Primary concern is for the insured but real world the insurer is the one paying the bill. b. In some circumstances, it may become ethically necessary to tell the insured to hire their own attorney. 8. What if the claim is for more then the policy? a. Excess claim letter b. You are going to want to get an attorney to represent you on anything that goes over the policy. 9. Settlement a. Insurer typically makes the decision b. There is implied good faith and fair dealing in every policy must act like a reasonable insurer (Crisci v. Security Insurance Co.) c. In reasonably strong cases, insurance company normally takes settlements that do not exceed the policy limits. 9) What if the insurer does not meet this standard? a. Liable for entire judgment even if (way) over policy limit b. Pain and suffering to insured is possible c. If the insurers state of mind is worse then negligence you can get punitives. 10) Effect of widespread insurance coverage on tort system? a. More settlements? b. Negligence as dominant tort this is the one that insurance companies cover c. Easier for courts/legislatures to make rules which broaden liability d. Settlement values collapse towards the middle weak cases have nuisance settlements and huge claims tend to settle lower then a likely verdict. III. Consumer Law A) Deceptive practices 1. Unordered merchandise a. It is considered an unfair or deceptive business practice to send products to consumers who have not ordered them, in hope that they will purchase them. b. Unordered merchandise which consumers receive in the mail may be considered a gift. c. This does not include gifts mailed by charitable organizations. 2. State deceptive trade statute practices a. Example: bait and switch or deceptive advertising b. In most states, including Washington, consumers who are injured by deceptive business practices may file suit for damages, and in appropriate cases recover treble damages as well as attorneys fees. 3. Door-to-door sales a. Consumer has a 3-day cooling off period for door-to-door sales over $25, and they have an absolute right during the cooling off period to cancel the sale. B) Product Quality and Safety

1. Implied warranty of merchantability provides an important remedy for consumers when a product becomes defective after the written warranty expires. 2. Magnuson-Moss Warranty Act a. Does not require consumer products to have warranties. b. If a seller chooses to offer a warranty, Magnuson-Moss regulates that warrantys terms. c. Requires that warranties be in one place, in language understandable to consumers, and made available to buyers before sales. Certain terms for warranties must be labeled full, otherwise they must be labeled as limited (duration) warranties C) Consumer product safety act 1. Set certain safety standards for specific products. 2. Consumers who suffer at least $10,000 in damages when one of these safety standards are violated may sue for their damages and recover their attorneys fees. 3. Example: crib slats for kids D) Consumer credit 1. Truth in Lending Act (TILA) provides consumers with a broad range of protections. 2. Liability for unauthorized charges a. Regulation Z of TILA governs credit cards. b. When credit cards are lost or stolen, cardholder liability is limited to the first $50 per card charged after the consumer notifies the credit card company. c. Regulation Z provides that cardholders are not liable for unauthorized use of their cards, and puts the burden on the credit card company to prove each use was authorized. 3. Billing Errors a. Credit Card holders who believe they have been billed for a charge in error may contest the charge in writing within 60 days (removed from bill for meantime) b. After complaint if filed credit card company asks merchant to document the charge. c. If not sufficiently proved within 90 days must be permanently removed from the bill. 4. Disclosure of financing costs a. When consumers buy on time, the total finance charge and the annual percentage rate must be disclosed in writing in advance of sale (mortgage on a house) b. Student loans made, guaranteed or insured under the federal Higher Education Act are exempt from these requirements. 5. Denial of Credit a. Credit may not be denied for discriminatory reasons b. Consumer who is denied credit may obtain free copies of their credit report upon written request within 30 days of the denial of the credit. 6. Debt Collection

a. Fair Debt Collection Act provides that professional third party debt collectors may not use unfair or deceptive means to collect debts. b. Collection efforts must be made at reasonable times (between 8:00 A.M. and 9:00 P.M.) c. Collectors may not make false assertions about collection methods they cannot or will not use. 7. Garnishment of pay checks a. Only party of a paycheck may be garnished. b. Employees may not be garnished because of paycheck. IV. Defamation A) Overview 1. Very old tort but with recent constitutional limits (1st Amendment) 2. This tort represents a protected balance between protecting reputation versus protecting free speech. B. Prima Facie case 1. What defendant does a. communication to a third party ex. a private one on one conversation cannot be considered defamation b. third party must understand Gorge es loco doesnt count c. republication is also considered defamation (repeating what you heard) d. third party does not have to believe the statement in order to prevail 2. What is considered defamatory a. Must be a statement that reasonable third parties would view as seriously true Statement must be specific to the person b. Non specific generalized insults are not defamatory (jerk/nerd) because there is no real injury and it is impossible to prove the truth or falsity of such a statement c. Statement must be false substantially true statements are not defamatory burden is on the plaintiff to prove the statements. d. Must be false in more then just a technical way ex. I killed 14 people when really I only killed 11 people. e. Statement must hold plaintiff up to ridicule/hatred/contempt f. Harming reputation in a community ex. going to a kosher deli and saying they have the best cheeseburgers! This hurts their reputation in this community. g. You can bring in external facts to make it defamatory ex. saying a married woman was at a hotel with someone else besides his wife. h. MAJORITY: If there are multiple possible meanings to the statement, then plaintiff must prove the statement was taken in the defamatory meaning by the audience. i. Must be a statement includes words and pictures j. Need not refer to plaintiff by name you can defame a small group of plaintiffs ex. There is a heroin addict on the GU basketball team. k. Implied defamation is actionable 3. Causation (need both but for and proximate) 4. Harm

a. Harm is sometimes required b. Harm of a specific type is sometimes required c. Only time libel v. slander affects rules d. Certain types of statements are thought to be very likely to cause harm, so specific harm showing not required. e. Libel written recorded statements - If it is libel you dont have to show harm to win prima facie case, however you might want to because of damages. f. Slander per se (not written/recorded, normally oral words, but serious accusation likely to cause harm) g. Four categories - crime of moral turpitude (rape yes, jaywalking no) - business misconduct (embezzlement - loathsome disease (leprosy, AIDS, plague) - sexual misconduct (accusing a woman of being unchaste) h. For other types of statements (slander not per se) plaintiff must show special damages harm or no prima facie case. 5. State of Mind a. Constitutional reasons it was added by the Supreme Court 40 years ago 1st Amendment free speech b. The broad form of defamation limits and freezes free speech c. Supreme Court says that a bad state of mind is needed for this tort this is only considered a constitutional minimum States can require a worse state of mind d. State of mind requirement depends on plaintiffs status - Public official and figure plaintiff must prove defendant had malice with regard to the truth of the statement, and have a clear and convincing burden of proof - Private plaintiff must prove defendant was negligent with regard to the truth of the statement, by normal preponderance of the evidence burden of proof - Failure to use reasonable care is not enough - Malice is subjective but defendant must know that what they published was false, or defendant had substantial doubts it was true and went ahead and published it anyway. - You can be a public figure in some or all aspects of your life - Policy: Effective democracy requires us to put limits on defamation e. A statement of opinion relating to matters of public concern which does not contain provable false factual connotation will receive full constitutional protection. (Milkovich v. Lorain Journal Co.) 6. Remedies a. No injunctions barred by 1st amendment b. Nominal (important because plaintiff mostly just wants to clear their name) unless non per se slander c. Compensatory - Special damages (tangible business-type losses)

- Other (pain and suffering) - Presumed (no specific proof) must prove malice by clear and convincing evidence unless purely private defamation (let jury decide what they believe is just compensation for defamation) d. Punitive must prove malice by clear and convincing evidence unless purely private defamation. e. Retraction statutes may also limit damage recovery. f. The first remedy for any victim of defamation is self-help (Gertz v. Robert Welch) 7. Defenses a. Check state law for retraction requirement b. Absolute privileges - Consent consenting to defaming statements - Publications between husband and wife - Federal equal time statute for broadcasters and repeaters of equal time messages (political campaigns) - Statements said in government proceedings (trial testimony) c. Qualified Privilege can be lost by (1) malice or (2) excessive publication - Statements in general that help - Group which includes plaintiff or - Group which includes defendant or - Group of third parties - Society in general - Example: Employment references in general help prospective employees 1) Courts generally agree that references have a qualified privilege as furthering the plaintiffs interest and the third parties employers interests - Example: Reporting child abuse in general helps kids VI. Misrepresentation A. Prima facie case 1. Usually comes up in commercial transaction between businesses, sales of houses or cars 2. Defendant makes a false statement of material fact (defendant lies) it is lie about what was in your head at the time. a. Must be some sort of false statement ex. affirmative verbal representation b. The false representation must be material to the transaction c. Non verbal 1) Statements can be nonverbal but you still have to prove you relied on it ex. rolling back the odometer d. Silence 1) In general, silence is not a lie or a misrepresentation even if you know something and keep quiet about it. 2) Exceptions:

about house

- Partial truth Defendant makes partial disclosure which is misleading without fuller disclosure. Ex. partial disclosure the ants and not full disclosure about the cockroaches - With home sales concealed defect known to the defendant and not discoverable by the plaintiff. Ex. rotting wood inside a

- New information acquired later say something that is true at the time you say it and then it changes. - If there is a special relationship between parties. Ex. Home inspector e. Fact v. Puffery 1) There is often a lot of hyperbole when you sell stuff if this is what you have then this is not actionable. 2) If parties do not have even bargaining power then opinion may be fact 3) Opinions based upon an assertion of fact may be actionable f. Retraction possible to fix things by correcting the lie before the other party relies on it. 1) It has to be timely 2) It not only has to be that you had a change of heart in your head but that you also conveyed that change of heart to the other person. 3. With a certain state of mind regarding the truth of the statement Three possibilities: a. Innocent misrepresentation honestly reasonably think true 1) Sale/lease/barter goods transactions only 2) If sale of goods, breach of warranty contract claim also possible. b. Negligent misrepresentation (didnt use reasonable care) 1) Must show that the defendant was unreasonable with the truth as to what they were saying. 2) Generally not actionable EXCEPT: - In cases where defendant has special duty/special relationship to the plaintiff that gives rise to a duty to tell the truth and be reasonable with regard to the truth. i. Bailment relationship sufficient ii. Contract relationship iii. Professional advice givers lawyers, doctors c. Scienter (true fraud) malice know its false and you keep on lying 1) Scienter know it is false or reckless regarding the truth 2) Comparative negligence is not a defense 3) Successful plaintiff may elect contract damages if you had a good deal you can get the benefit of the bargain 4. Reliance by plaintiff the misrepresentation was said to induce reliance by the plaintiff a. With Scienter or innocent misrepresentation claims, reliance must be justifiable (plaintiff does not know that defendants statement is false nor is it obviously false)

b. With negligent misrepresentation plaintiffs reliance must be reasonable (note that reasonable care may involve some investigation by plaintiff) - CPN is a defense with negligent misrepresentation 5. Causing both kinds 6. Plaintiff harm have to prove actual harm made by the lie that you relied on to your detriment 7. Damages a. Tort compensatory damages b. Can get business losses c. Cant get pain and suffering d. If plaintiff proves Scienter plaintiff can elect contract (expectancy) damages 8. Who can be a plaintiff? a. Scienter claims any foreseeable person b. Innocent misrepresentation claims Plaintiff must be the other party to the sale/lease/barter transaction (no third party claims) c. Negligence Third party claims limited to when defendant provides advice for specific third party benefit or knows her statements will be supplied by the specific third party. VII. Statutes of Limitations A. Types of (which clock governs?) 1. Varies a lot from one state to another 2. Usually different statutes for different areas of law 3. Within tort law can be one overall statute but usually more than one 4. Number of tort S/O/Ls often one for intentional torts and another for negligence 5. Within negligence, may be several statute of limitations ex. separate one for medical malpractice 6. Most common are 2 or 3 year deadlines 7. Can get very specific a S/O/L just for child sex abuse cases B. Procedural issues 1. Affirmative Defense 2. Defendant must plead in answer 3. Defendant has burden of proof 4. Normally grounds for a motion to dismiss 5. Failure to raise as a defense or to timely file may be malpractice C. Accrual Issues (when does the clock start?) 1. Lots of possibilities 2. With harm (defendant) 3. With actual discovery of harm (plaintiff) 4. When a reasonable plaintiff would have discovered harm (plaintiff) 5. With (actual or constructive) discovery defendant likely caused the harm 6. With (actual or constructive) discovery that there is a legal claim that covers what happened 7. Majority = Actual or constructive discovery of harm in medical malpractice cases

D. Tolling (timeouts) 1. In cases where defendants do not have capacity to sue 2. Examples: a. Minors b. Legally insane people c. Incarcerated people d. Fraudulent concealment of claim by defendant E. Statutes of Repose 1. Additional timeliness requirement beyond S/O/Ls 2. Sets outer limit for claims 3. Examples a. Product liability b. Building construction torts c. May violate state constitutional provisions F. Tort Reform and S/O/Ls 1. Recent proposals (regarding medical malpractice) 2. Notice of claim requirement 3. Statute of repose 4. No tolling for minors 5. Discovery rule limited to foreign objects left in patient 6. Extended or get rid of S/O/L for child sex abuse cases VIII. Invasion of Privacy A. Concepts of Privacy 1. Common law privacy 2. Tend to be against other people and often against media defendants 3. Tend to be about the right to be left alone 4. Fairly new (20th century tort) 5. Actually 4 torts a. Intrusion someone in your space (either physically or non-physically) b. Public disclosure of private facts (ability to keep information private) c. False light similar to defamation d. Appropriation control over your identity (mostly celebrities) 6. Lots of overlap with other tort claims 7. Also constitutional limits (free speech, free press) at least on some claims; except for newsworthy events 8. Damages - Pain and suffering - Punitive damages possible if state of mind is proven - Compensatory B. What the 4 invasion of privacy torts have in common!!! 1. First 3 are about privacy and the right to be left alone 2. All require that defendant act with general intent (deliberately) 3. All require interference with right to be let alone that would be highly offensive to a reasonable person 4. Custom and usage are key here (are journalists using traditional ways of news gathering)

5. All require both kinds of causation 6. All require harm serious interference with expectations of privacy C. Intrusion 1. Prima facie case: a. Defendant invasion (usually physical, but doesnt need to be) b. With general intent c. And in a manner that would be highly offensive to the reasonable person d. Into an area where the plaintiff has a reasonable expectation of privacy e. Causing (both cause in fact and proximate cause) harm to plaintiff f. Ex. Bugged homes and then uploaded the video on the internet D. Public Disclosure of Private facts 1. Most defendants are media 2. What facts are private about you and what facts are not private about you 3. Policy: Protects interest in keeping information about oneself to oneself 4. Prima facie case: a. Defendant publicly discloses b. With general intent c. Private facts: 1) Not those in the public domain ex. government documents 2) Not facts which are of legitimate concern to the public d. In a manner which would be highly offensive to a reasonable person e. Causing proximate and cause in fact f. Harm to plaintiff (good alternative to defamation if information is true) E. False Light 1. Also a good alternative to defamation when the information printed is false but not defamatory 2. Protects interest in avoiding false portrayal of private aspects of ones life 3. Prima facie case: a. Defendant publishes b. With general intent/and for public plaintiffs with defamation malice c. False portrayal of plaintiff/for public plaintiffs generally the facts falsely portrayed must be private matters in manner which would be highly offensive to reasonable person d. Causing x 2 e. Harm to plaintiff f. Ex. Jessica Alba on the cover of Playboy F. Appropriation 1. Protects interest in having control over the proprietary aspects of ones own identity 2. Plaintiffs are usually but not always famous 3. Prima facie case: a. Defendant deliberately b. Uses plaintiffs name/likeness/identity c. In a manner which would be highly offensive to a reasonable person

d. For defendants commercial gain e. Causing x 2 f. Harm g. Ex. Johnny Carson toilet seats IX. Interference with business relations A. Prima facie case 1. Defendant with general intent 2. Wrongfully 3. Interferes with plaintiffs actual or prospective contract with a third party a. What is considered wrongful? 1) Very gushy 2) Hard to draw line between hard/sharp business behavior and wrongful behavior 3) Courts do look at both: - The behavior/means/what - And the motive/ends/why 4. Causing x 2 5. Harm B. Remedies tort damages C. Wrongful discharge 1. Employment at will general rule: a contract that either side can walk away from at any time a. Exceptions: 1) Written individual employment contracts 2) Tenure permanent job security 3) Labor contracts with just cause language 4) Employer handbook/policy most states these become terms of the employee/contract relationship 5) Statutes which say certain grounds are invalid reasons to discharge a worker ex. Title VII employers cant discharge employees because of race, religion, or pregnancy 2. Wrongful discharge in violation of public policy tort claim a. Defendants reason for discharge must violate important specific public policy. Ex. whistleblowing X. Tort Reform A. What is the problem? 1. Widespread agreement that medical malpractice premiums are too high 2. Have these premiums caused the doctors to flee the state, change, or give up practice? B. Range of solutions to deal with these problems 1. School of Thought A: frivolous suits/runaway juries/greedy plaintiffs attorneys 2. School of Thought B: Bad doctors (small number has large % of claims), ineffectively monitored, high overall rate of medical error 3. School of Thought C: Insurance company (greed/economic cycle)