PRODUCTS LIABILITY AND SPECIAL TORT ACTIONS

1. PRODUCTS LIABILITY AND SPECIAL TORT ACTIONS

2. Review of Practice Exam • Common pitfalls • Assuming the reader knows the elements. • Set the stage, then fill in with analysis. • Don’t mix negligence elements with intentional tort requirements. • Analyze, where appropriate, big picture first (3 categories of torts), then individual claims. • Shared work is fine when learning, however, you will not have any assistance during the final. • Expansive discussion of the history of torts.

3. Review of Practice Exam • Assault? – No, LL was not aware of Johnny’s presence before being struck. • Battery? Yes, purse intimately connected to body. Unconsented physical touching. • IIED? No, no facts supporting her required damages. Although, his behavior was outrageous. • Trespass to Chattel? Yes. Interfered with right to posses. • Conversion? Yes. Wrecked car and used money. • #2 - NO valid defenses. Perhaps necessity to avoid starvation. • #3 - Trespass to chattel and conversion? NOT – intent requirement missing. • #3 – Negligence.

4. Review of Intentional Torts

5. BATTERY Intentional harmful or offensive contact To plaintiff’s person Causation NOTE: Harmfulness and offensiveness are judged by the reasonable person standard. HINT: Battery is a completed assault

6. ASSAULT Intentional act by defendant creating a reasonable apprehension in plaintiff. Of immediate harmful or offensive contact Causation NOTE: If defendant has the apparent ability to commit a battery – good enough. Apprehension is not fear/intimidation. HINT: ASSAULT IS AN INCOMPLETE BATTERY.

7. FALSE IMPRISONMENT Act or omission by defendant that confines or restrains, To a bounded area Intent Causation

8. False Imprisonment cont’d. • Bounded area – Freedom of movement limited in all directions. Must have no reasonable means of escape known to plaintiff. • Physical barriers • Physical force • Threats of force • Failure to release • Invalid use of legal authority • Length of time is irrelevant. • Future threats and moral pressure are insufficient. • Plaintiff must KNOW of or be harmed by the confinement.

9. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS • Intentional act by defendant amounting to EXTREME and OUTGRAGEOUS conduct • Intent or reckless behavior* • Causation • Damages – severe emotional distress Note: Recklessness = indifference to the consequences.

10. FRAUD AND MISREPRESENTATION

11. ABUSE OF PROCESS(& malicious prosecution) • Misuse of a legal proceeding, or threat of such misuse • Misuse to achieve unlawful objectives • Injury to the victim as a result of the misuse NOTE: Filing mechanic’s liens, abusing a child custody hearing…

12. INVASION OF RIGHT TO PRIVACY(4 SUBCATEGORIES RECOGNIZED) Public exploitation of another’s private affairs in an unreasonably intrusive manner. • Appropriation • Unreasonable intrusion • Public disclosure of private facts • False light in the public eye NOTE: The right to privacy is a personal right, and not applicable to corporations

13. APPROPRIATION OF PICTURE OR NAME • Must show the unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage. • Liability usually limited to advertisements or promotions of products or services.

14. UNREASONABLE INTRUSION • The act of prying or intruding must be objectionable to a reasonable person. Also, the thing into which there is an intrusion must be “private.” • Photographs taken in public places are not actionable.

15. PUBLIC DISCLOSURE OF PRIVATE FACTS • Public disclosure of private information about plaintiff (public matter is not sufficient) • The disclosure must be objectionable to the reasonable person • Truth is not a defense – this means liability may attach even though the statement is actually true.

16. FALSE LIGHT IN THE PUBLIC EYE • “False light” exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. • For liability – there must be publication.

17. DEFAMATIONLIBEL and SLANDER • Defamation = Verbal communication of a false and disparaging statement to a third party. • Libel = Written defamation. • Written or verbal statement • False and defamatory (hint – defenses…) • Communication to third party • Harm to victim’s reputation in the community

18. DEFAMATION CONTINUED • If the defamation involves a MATTER OF PUBLIC CONCERN, the Constitution requires the plaintiff to prove two additional elements: • Falsity of the defamatory language, and • Fault on the part of the defendant.

19. Reputation in the community? Can be comprised of “one” other person. Can be comprised of a handful of close associates. Or can be the nation.

20. What about public figures? Movie stars, high-level government employees, television celebrities. These individuals must prove actual malice – high standard of proof required. Actual malice = Knowledge that the statement was false, or a reckless disregard as to the falsity of statement.

21. SLANDER PER SE Per se = automatic or presumed. Some words or statements are by themselves defamatory and no injury or damage are required. 1. Imply criminal conduct 2. Harmful to a business 3. Loathsome and communicable diseases.

22. TRUTH IS A DEFENSE TO DEFAMATION TRUTH IS AN ABSOLUTE DEFENSE TO DEFAMATION

23. Injuries to property • Trespass to land • Trespass to chattel • Conversion

24. Trespass to land Required elements: • Physical invasion of plaintiff’s real property. • Intentional act • Causation

25. Trespass to land cont’d. • Real property includes the surface, airspace, or subterranean space for a reasonable distance. • Defendant only needs to have intended to enter on that piece of land – doesn’t need to know who owned it. • Invasion may be made by a person or object (such as a baseball.) Intangible invasion may lead to a nuisance action – later class.

26. Trespass to chattel Required elements: • An act that interferes with plaintiff’s right of possession in the chattel • Intent • Causation • Damages

27. Trespass to chattel cont’d. • Two types of interference: • Intermeddling (direct damage) • Dispossession • Damages • Actual damages – not necessarily to the chattel, but at least to the possessory right – are required.

28. CONVERSION • Required elements: • Act that interferes with plaintiff’s right of possession • The interference is so serious that it warrants requiring defendant to pay the chattel’s full value • Intent, and • Causation

29. Conversion continued • Acts of conversion – include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, damaging, or misusing a chattel. • Seriousness of Interference – The longer the withholding period and extensive use, the more likely it is a conversion. Lesser interference = trespass to chattels. • Only tangible personal property qualifies. • Plaintiff can ask for $$$ or recovery of chattel.

30. DEFENSES TO INTENTIONAL TORTS THESE ONLY COME INTO PLAY WHEN THERE HAS BEEN A TORT COMMITTED. DO NOT FALL INTO THE TRAP OF ARGUING DEFENSES PRIOR TO ESTABLISHING THE OCCURRENCE OF A BONA FIDE TORT

31. SELF-DEFENSE • Use of reasonable force • That counters attacking or offensive force • Necessary to prevent bodily injury, offensive contact, or confinement.

32. What is “reasonable force” ? • A neutralizing force – but don’t go too far • Once neutralized, further force may be considered assault or battery • If faced with deadly force, can respond with deadly force • In California, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

33. DEFENSE OF PERSONS • Use of reasonable force • To defend or protect third party from injury • When third party is threatened by attacking force

34. Defense of Property • Defendant’s use of reasonable force • To protect their property (or another’s) • When another person attempts to injure or wrongfully take possession of property.

35. What is reasonable force? • Reasonable person standard given the circumstances. • Ejectment – Use of reasonable force to repel a trespasser. • Reach back in and grab car jacker and toss them to the street.

36. Rightful possession • Chattel owner’s use of reasonable force • To retake possession • Of which owner was wrongfully dispossessed or denied possession • Efforts MUST be made promptly • Hot pursuit • You can enter onto the dispossessor’s property to regain your chattel

37. - Consent - (Informed, Express, and Implied) • Victim’s voluntary acceptance of intentionally tortious act • Full knowledge or understanding of consequences.

38. Express or Implied Consent • Consent may be expressed or implied • Classic example is emergency medical treatment • Other examples – written document and release…field trip permission forms. • Example of recent trip to ocean…

39. The Defense of Mistake • Good faith belief that action were justified • Reasonable person standard • With belief based upon incorrect information • Conduct otherwise would be considered tortious – but for erroneous belief. • So, must have a tort…

40. THE DEFENSE OF PRIVILEGE • Legal justification to engage in otherwise tortious behavior to accomplish a societal goal. • Committing trespass to save a drowning victim. • Breaking an illegally parked car’s windows to feed a fire hose to hydrant.

41. The Privilege Balancing Test • Do actor’s motives for engaging in intentional tort outweigh injury to victim or their property? • Was actor justified in committing intentional tort to accomplish their socially desirable goal, or could a less damaging action have been taken?

42. The Defense of Necessity • Defendant commits intentional tort • To avert more serious harm • Caused by force other than defendant • And defendant’s action were reasonably necessary to avert greater threat.

43. What is the difference between the Defense of NECESSITY and PRIVILEGE? Necessity is a defense ONLY to property torts.

44. WHAT ARE SOME REAL-LIFE EXAMPLES OF PRODUCT LIABILITY CASES?

49. OTHER EXAMPLES • Drugs: Vioxx (strokes, heart attacks), Viagara (blindness), Xenadrine (heart attacks, strokes), Fen Phen (heart and lung disease). • Cars: Ford Explorers (rollovers), Ford Pintos (exploding gas tanks in rear collisions), Firestone tires (blowouts), defective airbags. • Products containing asbestos (mesothelioma, a cancer of the lung, heart and abdominal linings associated with asbestos exposure). • Tobacco, guns, and breast implants. • Lawsuits against fast food manufacturers seeking to hold them liable for allegedly making people obese. • Lawsuits against cell phone manufacturers that sought to require them to provide headsets to protect users from radiation emitted by the devices.

50. Public Policy of Products Liability Society’s decision that business manufacturing or selling defective products are in the best position to bear the costs of injuries to innocent product users.