TORT LAW STRICT LIABILITY, PRODUCT LIABILITY, SPECIAL TORTS ACTIONS and IMMUNITIES Paralegal Certificate Program Class 4

Tonight we are covering Chapter 8: Strict or Absolute Liability Chapter 9: Products Liability Chapter 10: Special Tort Actions Chapter 11: Tort Immunities Review for Final Exam

Distinction between strict liability and other areas of tort law

Strict Liability Interchangeable term with Absolute Liability The tortfeasor is held responsible regardless of fault. Fault is Irrelevant So, even if the tortfeasor used every possible degree of care to protect against injuring the victim, that would not prevent liability. Limited to certain types of activities, such as abnormally dangerous activities and defectively manufactured products.

Abnormally Dangerous Activities Activities that are inherently hazardous because of what is involved. There is a high risk of harm to persons, land or chattel and the likelihood is that the harm will be great. Even with due care, the risk cannot be eliminated. Must create a great risk of seriously injuring the plaintiff or the plaintiff’s property. If the tortfeasor could have eliminated the risk of harm through the use of reasonable care then there is no strict liability. Example: Utility company using insulated wires. If someone hurt with these precautions, not strict liability. Use negligence. Courts often apply a balancing test (comparing the dangers created by the activity against the benefits that the community derives from the activity).

Restatement (Second) of Torts §520 Criteria for absolute liability: Abnormally dangerous activity created high risk of substantial injury to person or property Risk cannot be removed through use of reasonable care Activity is not commonly undertaken (common usage principle) Activity was inappropriately undertaken in the place where the victim was harmed The hazards that the activity creates outweigh the benefits that the activity brings to the community

Examples of Abnormally Dangerous Activities Crop Dusting – risk of harm in spraying pesticides on farmland with drifts of chemicals in aerial spraying being unpredictable. Poisonous gases Disposal of hazardous waste Storage of flammable liquid in urban areas

Defenses to Abnormally Dangerous Activities Some legislatures have enacted statutes to protect certain abnormally dangerous activities from strict liability (ie, public utilities distributing electricity or natural gas) Under the statutes, the protected entities cannot be held strictly liable but can be held liable for negligence or intentional torts. See Table 8-1 on pg. 275

Mass Torts Takes place when a large group of people are injured as a result of a single tortious act. Example – tobacco litigation. Large numbers of people are injured because of the same incident. IE September 11th. Not the same as a class action. Class actions involve smaller groups of people. In class actions, lawsuits are initiated by a person harmed and others become the “class” who are similarly situated.

Animal Owner Liability Distinction between wild and domestic animals. Strict liability for wild animals Owner may be held strictly liable for animals exhibiting vicious tendencies. Vicious propensity rule is the basis for strict liability for domestic animals If animals display vicious propensities and hurt someone or their property, then owner is absolutely/strictly liable Prove vicious propensities by past vicious behavior

Defenses to Animal Absolute Liability 1. Assumption of the risk 2. Contributory or comparative negligence 3. Consent 4. Self-defense and defense of others 5. Provocation

Florida Statute on Dog Bites 767.13. Attack or bite by dangerous dog; penalties; confiscation; destruction (1) If a dog that has previously been declared dangerous attacks or bites a person or a domestic animal without provocation, the owner is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. In addition, the dangerous dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time, or impounded and held for 10 business days after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure. (2) If a dog that has not been declared dangerous attacks and causes severe injury to or death of any human, the dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure. In addition, if the owner of the dog had prior knowledge of the dog's dangerous propensities, yet demonstrated a reckless disregard for such propensities under the circumstances, the owner of the dog is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Florida Statute on Dog Bites (cont) (3) If a dog that has previously been declared dangerous attacks and causes severe injury to or death of any human, the owner is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure. (4) If the owner files a written appeal under s. 767.12 or this section, the dog must be held and may not be destroyed while the appeal is pending. (5) If a dog attacks or bites a person who is engaged in or attempting to engage in a criminal activity at the time of the attack, the owner is not guilty of any crime specified under this section.

Scope of Liability in Strict/Absolute Liability Proximate cause, similar to that in negligence cases, is the scope of liability in strict/absolute liability cases The abnormally dangerous activity or the dangerous animal must have proximately caused the victim’s injuries for tortfeasor to be held strictly liable Elements: 1. Plaintiff’s injuries were reasonably foreseeable 2. Victim must be foreseeable plaintiff Elements defined same as in negligence Note there is no duty of reasonable care in strict liability

ParalegalSpace.com ParaStudent Log-In tab This website has great substantive material and sample exams for chapter 8. To supplement our Chapter 8 materials, log onto www.ParalegalSpace.com and click on the ParaStudent Log- In tab, Substantives section. Review the problems and review questions on pages 283-284. Review the responses to the questions and problems on the paralegal student website to help you to understand the concepts and apply the materials. Review the notes from the chapter.

Products Liability Liability arising out of the use of a defective product. From a public policy standpoint, businesses manufacturing and selling defective products are in the best financial position to bear the expenses incurred by the innocent user. Three different types of cause of action: Strict tort liability Breach of warranty Negligence

Terminology Warranty: a guarantee that a product or service meets certain quality standards. Product manufacturer: makes the defective product that gives rise to the lawsuit. Wholesalers: buy and sell goods to retailers Retailers: sell the products to the individual consumers. Purchasers: buy the products from retailers.

Who can recover The purchaser of the defective product. The ultimate user of the product, provided it is reasonably foreseeable that the person would have used the product. The ultimate user (may or may not be the purchaser) is the plaintiff in the litigation. The plaintiff sues multiple defendants (manufacturer, wholesaler, retailer: all can be liable!) Going for the Deep Pocket!

No privity of contract required between the ultimate user and seller or manufacturer or wholesaler in strict/products liability cases Privity of contract: a legal relationship that exists between parties to a contract

General Elements –pg. 295 1. Defect must render the product unreasonably dangerous to use 2. Seller/manufacturer must be in the business of selling products such as the flawed product 3. Product cannot be substantially changed between the time it left the manufacturer’s or seller’s hands and the time it reached the ultimate user 4. Defect must be the proximate cause of the ultimate user’s injuries 5. Ultimate user must have used the product properly (the way the product was intended to be used)

Additional Elements – pg. 295 6. The ultimate user must have been forseeable (forseeable plaintiffs theory) 7. The seller or manufacturer must have been responsible for the condition in which the product was maintained 8. In a few states, a sale of the product must have occurred between anyone involved in the chain (manufacturer, wholesaler, retailer, customer). Also see Restatement (Second) of Torts §402 – pg. 296 (similar elements, but fewer) See Chart on pg. 306

Florida Statutory Definition – Product Liability F.S.A. § 627.942 (7) "Product liability" means liability for damages because of any personal injury, death, emotional harm, consequential economic damage, or property damage, including damages resulting from the loss of use of property, arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product, but does not include the liability of any person for those damages if the product involved was in the possession of such a person when the incident giving rise to the claim occurred.

Defenses discussed in the text Assumption of the risk – usually a defense Discovering a defect but disregarding it and using the product Failing to properly maintain the product Failing to follow instructions or heed warnings for safe product use Contributory and Comparative Negligence – Not a defense Misuse of Product – can be a defense Example: Removal of safety devices (child proof on cigarette lighters)

Government Rules Defense F.S.A. § 768.1256 (1) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm: (a) Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury; (b) The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and (c) Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product. (2) In a product liability action as described in subsection (1), there is a rebuttable presumption that the product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which: (a) Were relevant to the event causing the death or injury; (b) Are designed to prevent the type of harm that allegedly occurred; and (c) Require compliance as a condition for selling or distributing the product. (3) This section does not apply to an action brought for harm allegedly caused by a drug that is ordered off the market or seized by the Federal Food and Drug Administration.

Bad Faith Defined as: Dishonesty or other failure to deal fairly with another person Most common example: Insurance companies failing to negotiate in good faith on behalf on an insured person and promptly settle a case in which liability is clear

ParalegalSpace.com ParaStudent Log-In tab This website has great substantive material and sample exams for chapter 9. To supplement our Chapter 9 materials, log onto www.paralegalspace.com para-student log in tab, substantive section. Review the problems and review questions on pages 316-318. Review the responses to the questions and problems on the para-student website to help you to understand the concepts and apply the materials. Review the notes from the chapter.

Special Tort Actions Nuisances Private nuisances Coming to the nuisance defense Public nuisances Nuisances per se Nuisance remedies (abatement, damages, injunctions) Wrongful Death (768.16 – 768.26 Wrongful Death Act in Florida)

Nuisance A nuisance is an unreasonable or unlawful use of one’s real property that injures another person or interferes with another person’s use of his or her real property. The two types of nuisances are public and private.

Private nuisance Occurs when someone uses his or her land in such a way as to unreasonably and substantially interfere with another person’s use and enjoyment of his/her land. The tortfeasor here is the land user whose activities are offending others Unreasonable and substantially – define these words in terms of offensiveness Offensiveness is determined by applying the reasonable person standard Would a reasonable person with ordinary sensibilities find the tortfeasor’s land use unreasonably offensive?

Use and Enjoyment: Terms of art in nuisance law, meaning the two are always used together The nuisance activity ruins the pleasure neighbors gain from using their real estate.

Examples of private nuisances Physical effects on land: Ground vibration Pollution of water on soil Crop destruction Flooding Excessive clutter Unwanted excavation

Examples of private nuisances (cont) Health hazards or offending sensibilities Noxious odors Smoke and dust Excessive noise and temperatures Toxic tort nuisances (disposal and transportation of hazardous waste or toxic chemicals) Incessant telephone calls Unwanted association with neighboring uses (ie strip club build adjacent to your property)

Florida example 479.105. Signs erected or maintained without required permit; removal (1) Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by s. 479.07(1) having been issued by the department, is declared to be a public nuisance and a private nuisance and shall be removed as provided in this section.

“Coming to the Nuisance” defense The plaintiff owns or uses the land where the alleged nuisance was already taking place when the plaintiff purchased or commenced using the land. Similar to assumption of the risk, meaning the Plaintiff knew or should have known that the preexisting activity would offend him or her.

Public Nuisance A land use that injures the public at large rather than just a single individual. Elements: (1) Tortfeasor’s activity (2) that unreasonably and substantially interferes with (3) the public’s use and enjoyment of legal rights common to the public. IE right to peaceably assemble in public places, right to use public streets and sidewalks without being subjected to offensive activities. Many lawsuits are filed by municipal government bodies or prosecuting attorneys under the state’s police powers (authority to file lawsuits to protect the public’s health, welfare, safety or morals).

Examples of Public Nuisances Almost all public nuisances are defined by statute or ordinance (which means the legislature deemed such activity offensive, unhealthy or immoral). Gambling, prostitution, failing to comply with health code provisions, unrestrained or vicious animals. Coming to the nuisance is not a defense to public nuisances.

Mixed Nuisances and Nuisances Per Se Mixed nuisance = some nuisances can be both private and public. The greater the number adversely affected, the more likely it will be deemed a public, as well as a private, nuisance. Courts often consider violating public nuisance statutes/ordinances to be deemed nuisances per se (same analysis as negligence per se applied to nuisances). Violation of the statute equates to automatic liability.

Remedies for Nuisances Monetary damages: Compensate the plaintiff for the injuries produced by the nuisance while not causing the respondent to lose his/her business (balance) Equitable Remedies (these do not involve money damages) 2 most common types: 1. Abatement: most common. Respondent is ordered to cease (abate) the nuisance activity. Abatement is often permanent. 2. Injunctions: the method for enforcement of an abatement (the actual court order that orders the respondent to cease and desist) Temporary (cease until court hearing, usually up to 10 days) Permanent (usually after trial; failure to obey - contempt)

Survival and Wrongful Death Statutes Survival statutes allow lawsuits to be brought by a relative for a person who has just died – the lawsuit is based upon the cause of action the deceased person would have had. (under common law this could not happen – the claim would die with the deceased). Wrongful death statutes allow lawsuits to be brought by the dependants of a deceased person against the person who caused the death. Damages awarded to compensate the dependants for their loss if the death was the result of negligence of willfulness. Requires a deceased person for this suit to be brought

Damages and Defenses – Wrongful Death Damages typically include loss of lifetime earnings and loss of consortium. Loss of lifetime earnings = the earnings that would have been produced in the deceased had not been killed by the tortfeasor. Loss of consortium = loss of love and companionship (economic and intangible) Defenses: All defenses available for the tort alleged to have been committed are available (ie, contributory or comparative fault, assumption of the risk, etc. )

Wrongful Birth/Wrongful Life Wrongful Birth: lawsuits for the wrongful birth of a child having serious defects or other congenital problems that results from a doctor’s failure to provide proper information (to advise, to diagnose, or to test properly). Usually deal with surprised parents who were uninformed of a genetic problem. Can be medical malpractice as well. More than just birth defects Damages: Emotional distress, cost of prenatal care and expense associated with child’s impairment. Wrongful Life: New to tort law – brought by or on behalf of unwanted child who is impaired. The child is seeking damages here against physician for difference in value of impaired life versus unimpaired life.

ParalegalSpace.com This website has great substantive study support material and sample exams for chapter 10. To supplement our Chapter 10 materials, log onto ParalegalSpace.com, ParaStudent log in area, substantive tab. Review the problems and review questions on pages 352-354. Review the responses to the questions and problems on the paralegal student website to help you to understand the concepts and apply the materials. Review the notes from the chapter.

Chapter 11 Tort Immunities Tort immunities are absolute defenses against a plaintiff’s tort claims It’s the reverse of absolute liability Types of Immunities: Sovereign (governmental) immunity Public officials’ immunity Young children’s immunity Family immunity Workers’ compensation

Sovereign (Governmental) Immunity Defined: The government’s freedom from being sued. In many cases, the US government has waived immunity by statute (Federal Tort Claims Act). History: The king can do no wrong and English Common law adopted by the US What are governmental functions? An action performed for the general public good by a governmental agency, or by a private organization closely tied to the government. They perform public protection activities such as fire, police, or ambulance services. Most states governmental immunity is abolished as an absolute defense. No tort immunity remains completely unchanged since English Common Law.

Public Officers Who is protected? Legislators and judges have absolute immunity from tort liability for acts in their official capacity Executive branch does not Rationale for Immunity To ensure legislators and judges can pursue their public duties without fear of tort liability

Children of Tender Years Tender years defined: Minors; usually those under age of 7 Minor: A person who is under the age of full legal rights and duties More of a qualified immunity from certain torts to children of a very young age. Absolute Immunity for Intentional Torts Because young children mentally and emotionally incapable of intent to commit tort Immunity for Negligence Most courts – no absolute immunity for negligence Age is merely a factor Usually extremely young (3 or 4) incapable of negligence

Spousal/Family Immunity Spousal Immunity: Common law rule that makes one spouse immune from suit by the other spouse Abolished to some degree by majority of states or some states have only abolished the immunity from suit for specific kinds of torts. Family Immunity: Common law, suits between parents and children were prevented. Note, only applies to parent/child….not between other relatives such as brother/sister.

Workers’ Compensation If employee injured or killed as result of incident occurring during course and scope of employment Regardless of employer fault This is sole remedy – cannot later sue employer Recovery amount set by statute

Final Review Recall difference between Intentional Torts v. Negligence or Strict Liability: The chart Intentional torts only require Intent Strict Liability does not regard fault Negligence uses reasonable person standard Negligence cases: Scope of duty refers to foreseeability of injury Damages available in Intentional Tort, Negligence, and Strict Liability cases: Review the types of damages available and be familiar with their definitions and when they are recoverable

Final Review Chapter 1: Introduction to Torts Know definitions of negligence, intentional torts, and strict liability Know the unique elements of each tort Understand the overview of a civil case (complaint, answer, discovery, etc.) – and which party files what document. Understand each parties burdens of proof (throughout all the chapters) Example: Defendant has burden of proof to prove affirmative defenses raised in his/her answer to the plaintiff’s complaint Review the different types of alternative dispute resolutions and what their purposes are Chapter 12 : Paralegal Ethics Know liability of attorneys and paralegals Know what is ethical conduct for attorneys and paralegals Know when paralegals are permitted to represent parties Know what duties paralegals are permitted to perform

Chapter 13: Tort Investigations Understand the paralegals role in investigations Study the different methods available to paralegals to discover information (discovery tools, police reports, internet, employment records, medical, public, etc.) Understand the different types of cases you will be investigating (auto, med mal, etc.)

Chapter 5: Intentional Torts – to person Know the elements to an intentional tort (act, intent, injurious behavior) and what each element means. Study and know the elements and definitions to each type of intentional tort and what is needed to prove each (assault, battery, false imprisonment, intentional infliction of emotional distress, fraud, misrepresentation, etc….all discussed in chapter) Be aware of what is required to prove each intentional tort Example: Intent required for battery is not intent to harm, just intent to touch in offensive or injurious manner. Study transferred intent Know which torts it applies to Know malicious prosecution v. abuse of process Understand the elements and differences between the 4 types of invasion of privacy

Chapter 5 con’t: Defamation: Know slander v. libel Chapter 6: Intentional Torts – to property Be sure to know what Intentional torts are to the person v. property Same as Chapter 5 – know the elements and definitions of the intentional torts to property Chapter 7: Defenses to Intentional Torts Know the types of defenses to intentional torts to the person and property Understand the type of force you can use in defending intentional torts to person v. property Know the elements of the defenses and what is needed to prove them Review Statute of Limitations and Workers’ Compensation

Chapter 2: Negligence Chapter 3: Special Negligence Action Very important topic Know the elements and what each element means, and how it is proven Understand and define the scope of duty, foreseeability, reasonable person standard, both types of causation (factual/actual and proximate/legal cause), breach and damages. Recall “taking the victim as you find him” Study res ipsa loquitur Damages: Know the different types, define them, alternate names, and when they are awarded IE: Compensatory (general, special, economic, noneconomic); Nominal, Punitive, etc. Review Negligence Per se

Know the difference between invitee, licensee, and trespasser and the duties of reasonable care owed to each Order: Highest duty to Invitees, then licensees, then trespassers Know what each duty specifically is to each Vicarious Liability Employer/employee or principal/agent Respondeat Superior Liability within the scope of employment Coming and going rule Frolic and Detour Review Negligent infliction of emotional distress Impact Rule Physical Manifestations Rule Zone of Danger Family Relationship Rule

Chapter 4: Defenses to Negligence Used by defendant against plaintiff Understand the difference between contributory negligence and the two approaches to comparative negligence. Understand how the percentages of negligence and recovery of damages work for each. Contributory: no recovery even if defendant 99% at fault and plaintiff only 1% Example: Pure comparative approach: the plaintiff can recover even if the plaintiff was 99% at fault (can sue the respondent for 1% fault). 50/50 fault (comparative): the plaintiff can recover if the plaintiff was up to (but not more than) 50% at fault. Study assumption of risk and know the difference between implied and express assumption of the risk; also review statute of limitations Review last clear chance – applies(d) in contributory negligent states

Chapters: 8 - 11 General Review Know when you will be held strictly liable and exceptions Understand what an ultra-hazardous activity is Understand when privity of contract is and is not required between parties Understand who can be sued in a strict liability case Understand the “coming to the nuisance” doctrine Understand wrongful birth, wrongful life, and wrongful death cases Review Chapter 11 on the different tort immunities; specifically spousal immunity, tender years immunity and governmental immunity Recall what “going for the deep pocket” means Review what can make a product unreasonably defective Such as faulty design, error in manufacturing, improper maintenance, failure to warn Know Animal Owners’ Liability and Vicious Propensity Rule Domitae naturae – means domestic nature – means you tame, domestic animals Ferae Naturae – means wild nature – means your wild animals