Duties of Owners and Occupiers

3 Classes

1. Invitee: Business visitor or someone in an area open to the public. Duty: reasonable care to assure that the premises are reasonable safe reasonable inspections.

2. Licensee: Inviting a friend to you apartment, a social guest. Duty: if you are aware of any hidden dangers that the licensee is about to confront you have to warn them.

3. Trespasser: Majority view is that the only duty you owe a trespasser is to not willfully (intentionally) or wantonly (very recklessly) harm them.

Duties of Owners and Occupiers

Misc.

- Your status can change.

- Garbagemen and post men come regularly and provided service: Invitee

- Police and firefighters don't when or if they'll ever come: Licensee

Special Relationships

- Ordinarily have no legal duty to be a good Samaritan.

- There are special relationships between you and person hurt or between you and person who did the hurting.

- Ex: landlord

Special Relationships

Landlords

- Legal duty to protect tenants from foreseeable criminal acts of 3rd parties. B/c they have exclusive controll over common areas. In best position to prevent, cheapest cost avoider.

- Already have analogous duty to keep common areas in state of sound repair.

- Not an insurer of tenant's safety, required to provide a reasonable standard of care under cirumstances.

- Costs will be passed down to tenants through rent.

- Criminal activity must be foreseeable.

Special Relationships

Psychologist - Tarasoff

- Texas rejects Tarasoff.

- Duty to warn under certain circumstances, not duty to predict.

- When he knows or reasonably should know when patient poses serious risk of harm to some identifiable potential victim, he owes the potential victim a duty of reasonable care to protect of foreseeeable danger.

- Legislative response: Not liable, EXCEPT, where patient has communicated a serious threat of physical violence against a reasonably identifiable victim.

Special Relationships

Tarasoff

 Odds of therapist being liable greatest when:

1. where the potential target has been identifed by the disturbed person.

2. where the therapist has somehow facilitated the commission of the crime.

3. where the therapist or institution has breached some explicit promise to the future victim.

Strict Liability

Generally

- The outgrowth of policy.

- Bramwell: With strict liability not inquiring into levels of care.  Focused on 'but for' causation.

- Corrective justice: P's right has been infringed and D did that which they had not right to do, don't care it was an accident or used reasonable care.

Opposing: To hold D liable is unfair and makes them insurers against the consequences of a perfectly lawful act upon their own land.  Wrong to be punished if done nothing wrong and lived up to society's standards.

Strict Liability

Blackburn, limits on strict liability.

- Applies if you bring on to the land for your own purpose.

- It has to be something likely to damage if it escapes.

- Have to keep it at your peril.

- Only prima facie liable, meaning there are affirmative defenses.

- Only prima facie liable for all natural consequences of escape, not all consequences.

Strict Liability

Cairns

- Natural use of land is negligence standard.

- Non-natural is strict liability.

What is non-natural? Man-made alterations would be very pro-P; Unreasonable or abnormally dangerous is more pro-D.

Strict Liability

Losee

- There will be a clog put on progress if strict liability is imposed.

- You are compensated by the general good of being a part of society.

Strict Liability

Powell

- D made choice to make money off this machine/industry, so he should pay for any damages occuring, not the innocent.

- Cost-internalization argument - make the defendant absord from his enterprise.

- Big BPL - if the risky business is in the best interest of the public than you should generate more benefit for society than harm and should be able to internalize the cost of strict liability and still make a profit.  If not then you should be driven out of business b/c the harm is outweighing the good.

Strict Liability

Animals

There is no 'one free bite' rule.

I you have something like a lion you are stirctly liable. (Zoos are not held strictly liable)

If you know your pet hass a propensity to be vicious then you are held strictly liable, otherwise it is a negligence standard.

Strict Liability

Ultra-hazardous/Abnormally Dangerous Activities

Booth Doctrine

- If dynamite blasting damaged property through shockwaves or something indirect than negligence standard.

- If there is physical intrusion by rocks and dirt on your property than strict liability.

Strict Liability

Ultra-hazardous/Abnormally Dangerous Activities

RST 2nd 519

- Apply strict liability to people engaging in an abnormally dangerous activity.

- Limited to the kind of hamr that makes the activity abnormally dangerous. (Danger of transporting dynamite is that it will explode (strict liability), not that the truck hits you (negligence))

Strict Liability

Ultra-hazardous/Abnormally Dangerous Activities

RST 2nd 520 (Use for exam)

-These are factors to decide whether to apply strict liability, NOT requirements. (not all factors need to be demonstrated, nor be given equal weight, usually have to prove several)

a) High risk of some harm, not the severity, just that some harm will occur, the P.

b) Likelihood that the potential harm will be great, not the actual harm, the L.

c) Inability to elminiate the risk through the use of reasonable care, can never eliminate all risk, even if you use reasonable care it is still dangerous.

d) Is it or is it npot a matter of common usage?, an activity might be common but being in the business of performing it may not be common (exterminators)

e) Inappropriateness of the activity to the place where it was carried out.

f) Cost-benefit Analysis (the big BPL), if the vlaue to the community outweighs it sdangerous attributes then you should not be held strictly liable.

Strict Liability

Ultra-hazardous/Abnormally Dangerous Activities

RST 2nd 520 (On exam)

- Apply it, but tell him it is controversial b/c: (1) it is too subjective; and (2) it is irrelevant b/c whoever causes the harm should pat for it.

- Some courts apply it, others don't apply it at all, and some courts only give it weight when the D's activity is really of enormous value to the community.

Strict Liability

Ultra-hazardous/Abnormally Dangerous Activities

RST 3rd 20 (just be able to mention there is one)

1) D subject to strict liability for physical harm resulting form the activity.

2) Abnormally dangerous if:

- Creates a foreseeable AND highly significant risk of physical harm even when reasonable care is by all actors, AND

- Activity is not a matter of common usage.

- Fletcher: Matter of Corrective Justice - only impose strict liability when the risks are non-reciprocal.

- Epstein: You have no right to hurt me (pro-strict liability). Corrective Justice - apply strict liability for all accidental harm b/t strangers, regardles of whether you used reasonable care.

- Posner: Main purpose of strict liability - To make you consider alternatives to your activity, NOT to get you to use a greater degree of care.

Strict Liability

Abnormally Dangerous Activities

Affirmative Defenses (For Exam)

- General Black Letter Law: Under RST 2nd - NO contributory or comparative negligence, but ANY assumption of risk is a total bar to recovery whether reasonable or unreasonable.

- NO guarantee that a present day court will adhere to the RST 2nd, some might say:

- Unreasobale Assumption of Risk: should NOT completely bar recovery, but should apply comparative negligence.

- Reasonable Assumption of Risk: should not diminsh or deny recovery b/c he did something beneficial such as assumed the risk to save someone else.

Nuisance

3 types

- Intentional nuisance: intentional & unreasonable - D knows with substantial certainty that they will be interfering with P's use and enjoyment. Two ways to show unreasonable: (1) simple cost-benefit analysis - gravity of harm outweighs benefit of the D's activity. (2) When social benefit outweighs social harm: there will not be an injunction, could still get monetary damages.

- Negligent nuisance: comparative negeligence and unreasonable assumption of risk reduces P's recovery.

- Abnormally dangerous nuisance

Nuisance

Continuing invasion doctrine

Nuisance

"Live and Let Live Rule"

Reciprocity - we are all interfering w/ each other in trivial ways so everyone should just deal with it; do not want to tie up courts w/ trivial litigation.

Exception: when it is not trivial, it is a significant interference:

- Can show actual physical damage to you property.

- No actual physical damage, but you can show an actual decrease in the market value of your property due to D's activity.

- If the interference is purely for spite, even if it is minimal there will be a cause of action.

Nuisance

Locality Factor

- Relevant factor, but not dispositve.

- The level of toleration varies according to the 'locality' - look at the neighborhood where the nuisance occurs (would be expected to put up with more in an industrial are, than a residential area)

Nuisance

Ultra-sensitive plaintiff

For exam: we tell the hyper-sensitive person that they will not ejoin the bells from ringing.

Utilitarian: Cannot let the weakest, most fragile to prevent the majority from engaging in normal, healthy, wholesome daily pursuits.

Corrective justice: It's not fair the ultra-sensitive should control the activities we normally do.

What about egg-shell skull doctrine? - There was NO tort.  No nuisance, b/c it is a reasonable use of land.

Nuisance

Coming to the Nuisance

P coming to the nuisance is a relevant factor, not dispositive.

D's argument: unfair b/c i was there first, first in time is first in right; P wants unjust enrichment by increasing the value of the land he bought so cheap.

P's argument: D is being unjustly enriched - he bought small portion of land but wants to condemn entire area due to his use, he should have bought entire area.

Nuisance

Remedies

- If social harm outweighs social benefit - it is unreasonable so grant an injunction and award monetary damages.

- If social benefit outweighs social harm - deny injunction, but D should give P monetary damages if the harm is serious and it is financially feasible to pay damages w/o going out of business.

- Traditional: Could get injunction and monetary damages.

- Just an injunction.

- Just monetary damages.

Nuisance

Monetary Damages

Permanent: ends controversy forever, hard to calculate future harm, speculative.

Temporary: easier to estimate, only compensating for past and present harm. Temporary, so may have multiple suits from same plaintiff.

Nuisance

Injunctions

For exam: even if you decide not to grant an injunction, tell him all the different types. If you do grant injunction, tell him which one and why, and tell him what the others are.

1) Regular Injunction: you are doing wrong, so you should be shut down.

2) Conditional Injunction: grant injunction consitioned on some factors. If company pays P off then no injunction.

3) Postponed Injunction: no injunction immediately, but clock is ticking to abate nuisance or you will be shut down.

4) Delayed Injunction: issue the injunction now, but it does not go into effect until later to allow D to tie up loose ends (like moving).

5) Partial/Flexible Injunction: D will not be shut down if he modifies behavior by taking steps to reducing his interference with P's land.

6) Purchased Injunction: Court will grant injunction, but b/c P came to the nuisance, they will have to pay for D's moving expenses - purchase the injunction.

- Courts are reluctant to grant injunctions unless the harm is actual or imminent. (Fears are not legal causes of action)

Products Liability

Traynor's Reasons for Strict Liability

1) Manufacturer is the cheaper cost avoider. (give manu. incentive to research and develop)

2) Loss spreading - manu. charges a little more for prodcut to compensate innocent victims.  Too much loss spreading will price the prodcut out of reach for the working poor.

3) Deterrence

4) Elimination of Proof Complications

5) When it comes to food products there is Strict Criminal Liability

6) Cut out the 'Middle Man' - let consumer sue manu. directly

7) Manufacturing has evolved - No longer a close/personal relationship; We don not have the knowledge to examine products ourselves; We can no longer believe what advertisments say.

Products Liability

RST 2nd

- If you are a Seller you will be held strictly liable for products that are defective and the defect made the product Unreasonably Dangerous.

- 2 conditions for seller to be liable: (1) must be in the business of selling that product (2) Product must not be substantially changed by the time it reaches the consumer.

- Product not defective if it is safe for normal handling and consumption(if injury stems from abnormal handling or consumption then seller not liable)

- How to determine Unreasonable Dangerous: consumer expectation test: has to be more dangerous than an ordinary consumer would expect. (ordinary consumer w/ ordinary knowledge)

- Directions or Warning: Will NOT be Unreasonably Dangerous if consumer is given adequate notice.

- No strict liability for Unavoidably Unsafe Products: i.e. prescroption drugs

- Random error or imperfection when the product is being made - an unintended departure from the original design.

- Apply True Strict Liability

- Need to show (1) It is the deffect that renders the product Unreasonably Dangerous. (2) Was defective when it left the D's control.

Courts tend to use the ocnsumer expectation test: P must prove that the product was more dangerous than an ordinary consumer would expect when put to intended or reasonably foreseeable use.

- When no concrete evidence of manu. defect b/c product is completely destroyed:

1) Type of accident that does not ordinarily happen in the absence of negligence.

2) D had exclusive control.

3) P did not contribute to his harm in any meaningful way.

- Only have to prove that the injury due to the defect is 'more likely than not'.

- Can get to jury w/o identifying specific product defect: (1) P must prove that the product has not performed as intended. (2) P must exclude all other causes of the accident not attributable to the D.

Design Defect

In General

- Turns much on issues of reasonableness (negligence) in stead of anything like strict liability. Courts refuse to apply strict liability for design defects. Reasonableness standards apply.

- State of the Art: relevant, not dispositive.

- The fact that the danger is open and obvious is relevant but not dispositive.

- For exam: Ask whether the product is safe for its intended AND foreseeable use.

Design Defects

Consumer Expectation Test

- More dangerous than an ordinary consumer would expect when put to its intended OR foreseeable use.

- This test is on the decline: b/c if the danger is fairly apparent than it is meeting the consumer expectation but still unreasonably dangerous.

- W/ more complicated technology ordinary consumers don't have any idea how safe the product should be.

Design Defect

RST 3rd

1) P must prove the existence of a Reasonable Alternative Design (RAD); and

2) Must show that D's failure to use the RAD makes the product not reasonably safe.

- It is a risk-utility analysis b/t D's design and P's RAD.

- Very favorable to the D, largely followed in Texas and on the rise.

Design Defect

Barker Doctrine (minority view)

2 routes of recovery, Either/Or Test:

1) P can win if he proves the product fails the the consumer expectation test; OR

2) P can win if D fails to prove that the design's benefit outweighs the design's inherent dangers (Risk Utility Test)

- Burden of proof on D b/c: removes onerous burden of proof from P; D has greater knowledge  about the utility and risk of his design.

Design Defect

Modified Barker Test

- P still gets to chances to win, Either/Or Test, but the burden of stays with P.

1) P must prove D's design fails consumer expectation test; OR

2) P must prove D's design fails risk-utility test.

More courts starting to buy into this.

Design Defect

Wade's 7 factor approach

7 factors court should focus on:

1) The products utility, usefulness, benefit to society, the B.

2) Likelihood of injury and severity of of the injury that may result, the P x L.

3) Is there a safer a subsitute (a RAD).

4) Can D eliminate the danger w/o destroying the product's usefulness or making it too expensive.

5) User's ability to avoid danger simply by being careful.

6) User's awareness of the danger due either to its obvious condition or due to adequate warnings.

7) The feasibility of loss spreading.

Not strict liability for warnings.

- RST 3 (majority view) - P must show:

1) that the foreseeable risk could have been reduced by a reasonable warning; AND

2) D's failure to use that warning makes the product not reasonably safe.

- Adequacy of warnings:

1) Language of warning has to be comprehensible to the average user. (not overly technical, not overly dumbed down, just average)

2) Does it give a fair indication of the nature and degree of danger? so consumer can do their own BPL

3) Must be clear and sufficiently intense.

No duty to warn of open and obvious danger.

A good warning will not save a defective design.

For exam: Heeding Presumption - very strong presumption that if D had given an adequate warning that P would have read it and heeded it.

For exam: a manufacturer's only duty to warn of the foreseeable risk of the product.  Including any risk that would have been disccovered through reasonable testing.

Except for a couple states, hindsight approach has been rejected.  If risk scientifically unknowable or unforeseeable then P simply loses, matter of fundamental fairness.

What additional safety would we get from an additional warning vs. the additional cost of that warning? - The monetary cost, but more so, the peril of label clutter.

For a manufacturing defect - apply strict liability.

Liability for negligent warnings.

For exam: Learned Intermediary Doctrine - prescription drug manufacturers do not have to warn the consumer directly.  Only a duty to warn the doctor.

Exception - mass incoculations: here there can be a duty to directly warn the consumer, b/c doctors are not playing a meaningful role.

Design Defect: manufacturer is liable OLY if the foreseeable risks are so much greater than the benefits that NO reasonable doctor would prescribe the drug for any class of patients. Extremely pro-defendant.

For exam: Apply emerging consensus

- NO Contributory Negligence, ONLY COMPARATIVE negligence.

Majority modified comparative negligence: if more than 50% to blame then you get nothing.  If 50% to blame, you get 50% recovery.

- Reasonable assumption of risk: does not affect P's recovery.

- Unreasonable assumption of risk: apply majority modified comaprative negligence.

Just be able to mention RST 2nd: NO comparative negligence.  Unreasonable Assumption of risk is a complete bar to recovery.

Damages

For exam

Goals of punitve damages:

1) Deterrence

2) Retribution, punishment

When punitive damages are awarded:

1) Intentional torts

2) Willful, wanton, and reckless behavior

3) In some jurisdictions, gross negligence will suffice.

NO punitive damages for simple negligence.

3 guide posts for assessing punitive damages (don't want them to violate the 14th amend. by depriving D of life, liberty, property):

1) Degree of reprehensibitliy of D's misconduct.

- Is harm physical or economic?

- Did D show a reckless disregard for public health and safety?

- Financial vulnerability of the victim?

- One time mistake or recidivist?

2) The disparity b/t actual or potential harm suffered by the P and the punitve damages awarded, ratio b/t compensatory and punitve.

- 9:1 ratio or more probably will be unconstitutional.

- 4:1 ratio is pushing the envelope and suspicious.

- SC won't give us a bright line rule

- What about case where conduct is so bad that those small ratios aren't enough to reach the goals of punitive damages when compared to the actual harm suffered?

3) The difference b/t puntive damages awarded by the jury and the civile penalites authorized or imposed in an analogous case.

Damages

In general

Why we need punitive damages:

1) Compensatory damages often do not fully compensate.

2) Even if your wealthy can still make it a deterence.

3) Declining marginal utility of wealth

4) D's don't get caught all the itme, so nail them when we do catch them.

5) Expresses society's abhorrence at the defendant's acts.

6) Gives an alternative means for victims to feel vindicated.

7) Prevents violent self help by P's.

P can produce evidence of D's wealth, but P is under no obligation to prove D's wealth or lack thereof.

You must focus on the PLAINTIFF in the case at hand, and only the Plaintiff.