c


 (new chattel causes harm)

*1. Is this a c/a that can be brought against any and all sellers or only commercial sellers (proper ȴ)?
*2. Does c/ have any privity requirement? (Then warranty action)
*3. What kinds of damages are available? (No econ. unless connect to ppty/personal harm)

I.? Negligence
A.? Duty - owed by all sellers, whether regularly involved or not 0 commercial and non-
commercial sellers
i.? Grsbl ʋs = buyers, bystanders (zone of danger)
ii.? *Do not need privity
B.? Breach (carelessness) ʹ fail to carefully design, manufacture, package, test, or inspect
i.? *B <PL (risk-utility test)
C.? Causation ʹ But Gor Test, PC = foreseeability, intervening/superseding causes
D.? Damages = PI and ppty damages (NO pure economic loss, ie: lost profits)
II.? DEGENSES = C/N, C/G, A/R
III.? Warranty (SL ʹ no MS req.0 no fault (negligence) or intent (fraud))
A.? Express Warranty
i.? Ô seller who makes an
 



a.?  CC = merchants. CL trend to expand to all sellers.
b.? No privity but must show reliance 0 *look to specific language used
1.? Rsnbl consumer would have relied on warranty
2.? Language need not be super specific
c.? Assertion of Gact ʹ Material representation about a product͛s
composition, durability, performance, or safety
1.? Not subjective, opinion, or puffery
ii.? That is the 
 


between purchaser and ȴ
a.? Statement !


 !
 sale AND a rsnbl consumer
hearing/reading warranty would have  
iii.? Is liable to a ʋ whose harm is !
 
 
 by the  
 of the EW
a.? Is the failure of the warranty to be true the cause of ʋ͛s harm?
iv.? If ʋ suffers damages (personal injury, ppty damage, pure economic loss)
v.? CANNOT be disclaimed
B.? Implied Warranties ʹ implied by law
i.? Merchantability
a.? r 

b.? Who sell goods not fit for their

purposes
1.? Ord. use - can be broader than mnfr intends. Ex: standing on a
chair
c.? Are liable to ʋs under  CC 2-314
d.? If the  
 of the IW is the !
 


e.? Of ʋ͛s damages (personal injury, ppty damage, pure economic loss)
ii.? Gitness for Particular Purpose
a.? Ô seller
b.? Who sells goods not fit for the ! 
 !
 

1.? Part.  se - ʋ has a special use in mind for product, ȴ knows this,
and ʋ   on ȴ to select product for him/her
c.? Are liable to ʋs under  CC 2-315
 d.? If the particular use is 
 
 to the merchant and the
purchaser   on the merchant͛s !   in choosing the product
e.? And the  
 of IW is the !
 

 of ʋs damages (personal
injury, ppty damage, pure economic loss)
C.? DEGENSES
i.? Lack of Rsnbl Notification ʹ within a rsnbl time after discovering breach, ʋ must
notify seller (otherwise barred from claim)
ii.? Limitations on Liability ʹ possible for ȴs to limit ʋ͛s remedy (NOT for personal
injury 0 unconscionable, ok for)
iii.? Contributory Negligence ʹ NO (SL action). Comparative Gault ʹ may reduce
damages (ʋ discovers breach and continues to use ʹ lack of due care)
iv.? A/R ʹ after discovering breach, ʋ continues to use
v.? Disclaimer (ex: ͞as is͟) 0 for IMPLIED ONLY (NOT express)
vi.? May LIMIT remedies so long as not unconscionable (never limit PI ʹ prima facie
unconscionable)
IV.? Misrepresentation (Rstmt 402B)
A.? Elements
i.? Merchants
ii.? Who make a misrep of material fact
iii.? With the intent to induce purchaser͛s reliance
iv.? Are liable to ʋs if the purchaser justifiably relies on the misrep
v.? And damages result
B.? DEGENSES
V.? Strict Liability in Tort (Rstmt 402A) - Ʌ must prove he was injured while using the product in
a way that was intended and as a result of the defect of which he was not aware, the
product was unsafe (pg 734)
A.? Elements
i.? è
 
 seller who sells a product
ii.? With a  
 
that is    

0 some kind of fault(736)
a.? Manufacturer Defect ʹ some abnormality exists in 

  of the
product that was not intended, a deviation from its design
1.? Product unit differs from others the ȴ mnfrs, AND
2.?  nit in question is more dangerous than it would͛ve been if not
mismanufactured (742)
3.? S/L begins with injury (here, product unit)
b.? Design Defect ʹ challenge

product line (possible recall)
1.? âindsight Risk- tility: *think B < PL
a.? se knowledge at time of trial ʹ if ȴ had known of
defect, would ȴ have been negligent? (constructive
knowledge ʹ even if unknowable at the time)
2.? Ordinary Risk- tility: time when product was marketed (752)
a.?Compare risks with useful aspects (*great majority)
b.?State of the art technology (759) 0 ȴ͛s knowledge
i.? Neg. Standard ʹ look at ȴ͛s conduct
ii.? SL ʹ rsnblness is immaterial. Look at sci/med
knowledge at the time
3.? Consumer Expectations: is product dangerous to an extent
beyond which the ordinary consumer would contemplate?
 a.? If it shocks the ordinary consumer, it is unrsnbly
dangerous.
4.? âybrid (Ordinary Risk- tility and Consumer Expectations)
a.? *CA approach
b.? Does product meet consumer expectations?
c.? Ʌ must prove product͛s design proximately caused
injury.
c.? Warning defect ʹ had it been effective, evasive action would have been
taken
1.? Look at text: form, location, language
2.? Purpose of warning:
a.? Get user͛s attention
b.? Explain what the hazards are (potential risks)
c.? Show user how to avoid risks or deal with hazards if it
occurs
3.? Duty to Warn
a.? If obvious, no duty to warn
b.? Post-Sale (764)
c.? Sophisticated users (762)
d.? Pharmaceuticals ʹ Learned Intermediary
i.? *comment k ʹ no SL for drugs (pharmaceuticals)
d.? *negligence language - refers to condition of product, NOT conduct of ȴ
e.? OLD products ʹ normal wear and tear shifts liability away from mnfr
1.? Statutes of repose: can͛t use this theory if product is older than
(JD͛s number of years)
iii.? Is liable for !  


!! 

 to user or consumer
a.? NOT pure economic loss (but can be tied to PI and ppty damage)
b.?  ser = passively enjoys benefits
c.? Consumer = consumes or prepares for consumption
iv.? If the product is !


 
 the user or consumer  




 from the 
 
   


a.? No substantial changeDefect must exist when ȴ had control (must be
PC of injury)
B.? DEGENSES
i.? Product Misuse (CANNOT be frsbl misuse 0 bars claim)
ii.? C/G
VI.? Rstmt 3rd ʹ Products Liability Actions

ð 
 ʹ not separate tort.  se if you see interference with public right OR private right to use and
enjoy property) *different from trespass ʹ don͛t need physical invasion (can have both).

Common to Both: 1. State of Mind ʹ any (intent, neg, SL) 0 only relevant to determine damages and
defenses. 2. Both involve a substantial and unreasonable interference.

I.? Public Nuisance

A.? Def ʹ substantial, unrsnbl interference with a right common to the general public (801)
B.? Common Rights and Examples
i.? âealth: subject to public to disease, fumes, or animals
ii.? Safety: explosives
 iii.? Peace: subject to loud noises, threat of future harm
iv.? Comfort: subject to odors, smoke
v.? Convenience: obstructing a highway
vi.? Preserve community morality: XXX theater
C.? Demonstrating  nrsnbl Interference
i.? Substantial interference w/a right listed above
ii.? Violation of statue or regulation
iii.? Continuing conduct likely to produce permanent or long lasting effect and
substantial detriment to the public
D.? Private ʋ͛s right to sue for public nuisance 0 must suffer harm different in kind rather
than degree while utilizing a right common to the general public.
II.? Private Nuisance
A.? Intro
i.? Def ʹ interference with ʋ͛s right to use and enjoy ppty(799)
ii.? Permanent = not capable of abatement physically or by policy (damages
allowed due to diminished ppty value)
a.? *one time suit
iii.? Continuing = capable of abatement
a.? *successive suits until activity stops
B.? Analysis of elements depends upon remedy sought
i.? An intentional, neg, or SL act
ii.? That causes a substantial and unrsnbl interference w/ ʋ͛s use and enjoyment of
ppty
a.? Substantial = RP would take offense
b.?  nrsnbl
1.? Gor damages ʹ balance equities OR more than ʋ should bear
w/o compensation
2.? Gor injunction ʹ balance equities. Weigh gravity of harm against
utility of ȴ͛s conduct to the community.
C.?  seful or Injurious? (Balancing Test)
i.? Gactors (Totality of Circumstances):
a.? Extent and Duration of Interference (degree)
b.? Nature of Interference (how bad?)
c.? Social Value of use to which ʋ uses ppty
d.? Suitability of ʋ͛s use of ppty to locale (ȴ͛s use of ppty?)
e.? Burden on either to bear cost or shift it
D.? Rstmt ʹ if balancing cuts against ʋ, ʋ can still argue that its more interference than she
should have to bear without compensation (look to factors)
E.?  nreasonableness and Zoning ʹ if properly zoned, what right does Court have to enjoin
($ and injunction)?
G.? Appeals
III.? DEGENSES (*look at MS)
A.? Intentional ʹ consent of ʋ, A/R (no C/N or C/G)
B.? Neg ʹ C/N, C/G, A/R
C.? SL ʹ C/G = some JDs (reduce by fault), A/R (no C/N)
D.? Coming to the Nuisance ʹ can get injunction but ʋ must pay ȴ to relocate

ë



I.? Defamatory Statement ʹ one which tends to diminish ʋ͛s reputation 0 diminishes the
respect, good will, confidence, or esteem in which he is held or to excite adverse or
unpleasant feelings about him (834) (dual meaning = Q of fact for jury). *Meaning =
ordinarily understood by the common reader.
A.? Inducement ʹ extrinsic background facts needed to assess defamatory character of
statement (convey meaning)
B.? Innuendo ʹ explanation of why statement coupled with extrinsic facts injures ʋ͛s
reputation
II.? About the ʋ
A.? Colloquium ʹ where no specific reference to ʋ, need colloquium (extrinsic facts) to show
statement was in fact about ʋ (849)
i.? Not needed when ʋ is named
ii.? Small groups (<25) may have claim but generally not large (stmt infects group)
iii.? Ʌ must be living
iv.? Corp.s ʹ based on honesty, credit, efficiency, or business/moral character
III.? Galse ʹ not substantially true (thrust/sting of stmt)
A.? Burden of proving falsity is on ʋ
IV.? Gact/Opinion
A.? Opinion based on false facts is actionable (imply assertion of objective fact that is false)
B.? When ȴ lies about their true opinion, its actionable (offers false opinion)
C.? Galse facts are always actionable (ʋ must prove falsity)
D.? Test
i.? Specific language used (clarity/vagueness)
ii.? Whether stmt is verifiable (T/G)
iii.? General context of stmt
iv.? Broader context in which stmt appeared
V.? Published
A.? Def ʹ communication of defamatory words to someone other than person defamed
i.? May be intentional or negligent
ii.? Must intend for 3rd party to receive communication
B.? Primary (871)
C.? Secondary
VI.? Damages ʹ issue is whether actual damage must be proved or whether presumed damages
apply
A.? Libel per se (defamatory on its face) and slander per se (crime of moral turpitude,
loathsome disease, unfit for business and profession, unchastity) ʹ at CL could get
presumed
B.? Slander required special damages be proven (actual pecuniary harm ʹ economic loss)
before ʋ could recover general damages (humiliation, wounded feelings - presumed)
C.? Libel per quod (not defamatory on its face) ʹ split as to whether special must be proven
D.? *Remember impact of Constitution on damages!!
VII.? State of Mind
A.? NY Times ͞constitutionalized͟ the tort (Girst Amendment has impact).
B.? Elements impacted
i.? Proof of fault (state of mind)
a.? Actual Malice ʹ knowledge that stmt is false or acting with reckless
disregard to its falsity (875) (*needed for public)
 1.? Reckless disregard = high degree of awareness of probable
falsity OR
2.? ȴ͛s serious doubts of truthfulness (subjective)
3.? *to prove, impeach ȴ͛s good faith allegations
i.? Gabricated, imagination, unverified 3rd party
ii.? Inherently improbable, obvious doubts of accuracy
iii.? *use RP to show ȴ had serious doubts
b.? Prove actual malice by CLEAR AND CONVINCING evidence
ii.? Proof of falsity of statement
iii.? When presumed and punitive damages are available
C.? Analysis
i.? What is the status of ʋ?
a.? Public official ʹ whether the position in govt has such an apparent
importance that the public has in independent interest in the
qualifications and performance of the person who holds it, beyond the
general public interest in the qualifications and performance of all govt
employees
b.? Public figure
1.? All purpose ʹ all contexts (ie: celebs)
2.? Limited purpose ʹ injecting oneself into a particular public
controversy/debate
i.? Public controversy/debate ʹ impact on community
ii.? Did ʋ thrust themselves into debate?
iii.? Is stmt related to ʋ͛s participation in controversy?
c.? Private ʋ
ii.? If ʋ is a private person, what is the subject matter of the defamatory statement?
a.? Matter of public concern ʹ prove negligence or actual malice
1.? Must prove actual harm
2.? NO presumed/punies  NLESS actual malice proved
3.? *remember CL malice (hatred, spite, ill-will)
b.? Matter of private concern
1.? Presumed/punies available w/o proving actual malice
c.? Test for concern ʹ content, form, and context

ë 
ë



I.? Consent of ʋ (complete so long as scope not exceeded)

II.? Truth
A.? âistorically, if ʋ proved all other elements of defamation, falsity was presumed. Now if
ʋ needs to show fault under the 1st Amendment (public officials/figures or matter of
public concern), ʋ also has the burden of proving falsity.
III.? Absolute Privileges
A.? CANNOT be lost
B.? Do not consider ȴ͛s state of mind when they made the statement
C.? Three major types:
i.? Participation in government processes
 a.? Judicial proceedings ʹ all stmts made by any participant in any stage of a
judicial proceeding are absolutely privileged as long as the stmt bears a
rsnbl relationship to the matter being considered in the proceeding
b.? Legislative proceedings ʹ all stmts made by fed or state legislators in
their official capacity at hearings or during floor debates are absolutely
privileged
c.? Executive proceedings ʹ all stmts made by executive officials while they
are exercising the functions of the office are absolutely privileged as
long as the stmt bears a rsnbl relationship to the proceedings in which
the govt official is acting
ii.? Compelled broadcasts or publications
iii.? Communications between spouses
IV.? Conditional Privileges
A.? Can be LOST if ȴ does not act in a rsnbl manner and for a proper purpose
B.? Types:
i.? Reports of public proceedings
ii.? Publications to one acting in the public interest
iii.? Gair comment and criticism ʹ stmt protected when based on true/privileged
stmt of fact
iv.? Publications made to protect the interests of:
a.? The publisher
b.? The recipient, or
c.? A common interest
C.? Gactors to determine whether ȴ acted in rsnbl manner and for proper purpose
i.? Whether ȴ had a rsnbl belief that the stmt was true
ii.? Whether the stmt was solicited or voluntary
iii.? Whether the stmt was made to a proper person
iv.? Whether ȴ excessively published the stmt
v.? Whether words used in the stmt were appropriate
vi.? Whether ȴ had an improper state of mind when making the stmt