TORTS II OUTLINE
I. VICARIOUS LIABILITY - search for deep pockets. Impose liability on one party for the actions of another: derivatively imposed.
Two ways to get the principle - vicarious liability action and negligence action.
A. SCOPE OF EMPLOYMENT
Respondeat Superior Doctrine - employers are liable for the negligence of an employee committed while the employee is acting within the scope of his employment. An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.
1. Commuting to and from work is not under this doctrine.
2. Traveling during work is under this doctrine. Minor detours generally are within the scope of employment. Frolics (goes to see mistress 30 miles away -no vicarious liability).
3. An employee who uses his car during the course of his work (traveling salesman) is acting in the scope of employment while driving home from his last business appointment - since such a person is working and under his employer's control from the time he leaves his house.
4. Lundberg v. State. Engineering technician was not acting in the scope of his employment when he was involved in a traffic accident on the way from his weekend home in Buffalo to his work-site 80 miles away.
5. Distinguish workers' compensation claim (job related) vs. scope of employment for vicarious liability. The former is broader, making it easier to obtain workers' compensation.
6. INTENTIONAL TORTS - normally held not within the scope of employment. Exceptions for intent. tort liability to employer:
a) Force is authorized in the employment, e.g., bouncer
b) Friction is generated in the employment, e.g., bill collector
c) Employee is furthering employer's interest, e.g., removing a rowdy customer.
B. WHY HAVE VICARIOUS LIABILITY?
1. Control/deterrence. Employer is in a better position to prevent negligence?
2. Compensation.
3. Risk allocation / spread costs/risks - rather than leaving damage all on victim.
4. Enterprise (cost of doing business). Enterprise benefits, therefore it should pay the costs.
C. INDEPENDENT CONTRACTORS
1. Employers are generally not liable for the torts of independent contractors. An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof.
2. The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work. Murrell v. Goertz (Newspaper delivery contractor held not to be an employee of the newspaper. He had no direct contact with the newspaper and was hired by another contractor.)
Other factors to distinguish employee from indep. contractor:
whether one employed is engaged in a distinct occupation or business,
whether this type of work is usually done by an employee,
skill required for the particular occupation,
who supplies the instruments and place of work,
length of time for which person is employed,
whether work is part of regular business of employer,
whether the parties believe they are creating the employer-employee relation, and
whether principal is in business.
3. Exceptions where employer is liable for independent contractor:
a) where employer retains control over the aspect of the activity in which the negligence occurs.
b) where the employer selects an incompetent contractor (includes no liability insurance or underfunded)
c) where the work performance involves inherently dangerous activity, e.g., blasting. (strict liability).
d) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers; the duty of a motorist to keep his car in safe working order.
Liability for Negligent Selection
Both is respondeat superior and independent contractor situations, the employer may be liable for her own negligence is selecting an employee or contractor (e.g., a hospital is liable for contracting with physician who negligently treats hospital's patient). THIS IS NOT VICARIOUS LIABILITY.
D. NON-DELEGABLE DUTIES
1. A violation of a safety provision of the Vehicle Code does not make the violator strictly liable for damage caused by the violation. The duty to exercise reasonable care to maintain brakes so that they comply with the Vehicle Code cannot be delegated. MALONEY v. RATH (lady takes car in for repair of brakes, negligently installed, and involved in accident. Lady is REBUTTABLY PRESUMED LIABLE.)
Since her duty to maintain her brakes in compliance with the provisions of the Vehicle Code is nondelegable, the fact that the brake failure was the result of her independent contractor's negligence is no defense. MALONEY v. RATH
In the past, Maloney (victim) could not sue the mechanic directly, because he was not in privity of contract. Now under Third Party Beneficiary theory - could file negligence suit. Mechanic's failure to exercise due care caused the accident. By vicarious liability, could also sue Pete's Chevron. Maybe the personal assets of owner, depending on incorporation status.
Does is make any difference that she is not strictly liable? Yes, ruling still requires P put forth evidence of some negligence. If only strictly liable, P would not have to show violation of the reasonable person standard.
2. Duties that are nondelegable: 1) relationship where one party placed in care of another; 2) statutorily imposed duties; 3) involves enough danger / public safety (automobile without brakes).
E. BUSINESS ASSOCIATIONS AND VICARIOUS LIABILITY
1. Partnerships - Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture. Can collect from partners' personal property
2. Limited Partnerships - limited partners can lose only their investment, as distinguished from general partners, above, who can lose personal possessions.
3. Corporations - stockholders only lose investment. Officers and directors may be personally liable. mesothelioma attorney of mesothelioma on mesothelioma
F. OTHER FORMS OF VICARIOUS LIABILITY
1. Automobile Owner for Driver
The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another driving his automobile. However, many jurisdictions have adopted the family car doctrine, which makes the owner liable for tortious conduct by immediate family members in driving with the owner's express or implied permission for a family purpose. Some states have passed "permissive use" statutes, which extend vicarious liability beyond family members to anyone who is driving with express or implied consent of owner. Also, if owner is in the car. Omnibus insurance clause - courts are willing to impose liability.
2. Negligent Entrustment
The owner may be liable for her own negligence in entrusting the car to a (drunk, reckless) driver. THIS IS NOT VICARIOUS LIABILITY.
3. Driver of a car is not vicariously liable for negligence of manufacturer.
4. If two cars are involved in an accident and neither is negligent (e.g., a stroke victim), then cannot collect.
III. STRICT LIABILITY
To establish a prima facie case for strict liability, the following elements must be shown: 1) the existence of an absolute duty on D to make safe; 2) breach of that duty; 3) breach was the actual and proximate cause of P's injury; 4) Damage to P's person or property.
Challenge: figure out when fault (negligence) should be required vs. strict liability. Choice affects how damages are assigned between competing innocent parties.
A. ANIMALS
1. Private party who harbors a wild animal, which by its very nature is vicious and unpredictable, does so at his peril, and liability for injuries inflicted by such animal is absolute. Denver v. Kennedy (? as long as the person injured did nothing, voluntarily or consciously, to bring about the injury - provocation)
2. PUBLIC POLICY: Where a municipality maintains and operates a zoo for the benefit of the public and in response to the public's obvious desires, keeping and displaying animals commonly wild in nature is not an unreasonable or unjustified act. Denver v. Kennedy Public Duty Exception - negligence must be shown, although a high degree of care will be required.
3. Where animals kept for display to the public by a city are of a dangerous propensity, there is a duty on the part of the City to protect the public from unreasonable risk of harm which might be caused by such animals. Kennedy v. Denver (girl gets finger bitten off by zebra, and city breached duty of care owed to girl to allow her by erecting barrier which she could easily reach over to come into contact with the zebras.) Liable only with fault/negligence, not strictly liable.
4. Domesticated (Nondangerous) Animals - Knowledge Required.
The owner of a domestic or inherently nondangerous animal (e.g., a dog or cat) is not strictly liable for injuries it causes. Strict liability attaches if owner has knowledge of that particular animal's dangerous propensities (i.e., propensities more dangerous than normal for that species, animal threatens serious bodily harm or property damage to others). This rule applies even if the animal has not actually injured anyone yet.
Exception: Some states have "dog bite" statutes, applicable only to dogs, which impose strict liability in personal injury actions even without prior knowledge of dangerous characteristics. Basically, these statutes reverse the common law rule that every dog was entitled to one bite before it became known to be an animal with dangerous propensities. The statutes make its keeper liable for all damage or harm caused by the animal, unless the P was a trespasser, or was committing a tort.
5. Licensees and Invitees - Landowner strictly liable.
6. Trespassers Must Prove Negligence - exception for vicious watchdogs
7. Trespassing Animals. The general rule is that the owner of animals that are likely to stray and that do stray onto the land of another is strictly liable for any damage caused by such animals. An exception to this rule was made for domestic pets. Some (agriculture) jurisdictions - fencing in requirement; some (livestock) jurisdictions - fencing out.
8. Damages flow from dangerous propensity of animal. Would include actual medical out-of-pocket expenses, pain and suffering, lost wages, ? missed vacation plans - debatable.
B. ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES
1. Definition - An activity may be characterized as ultrahazardous or abnormally dangerous if it involves (1) a substantial risk of serious harm to person or property (2) no matter how much care is exercised. (3) Also, cannot be common usage. Strict liability is imposed on those who engage in such activities. Whether an activity is ultrahazardous is a question of law that the court can decide on a motion for directed verdict.
2. Test - The courts generally impose three requirements in finding an activity to be ultrahazardous:
(i) the activity must involve a risk of serious harm to persons or property.
(ii) The activity must be one that cannot be performed without risk of serious harm no matter how much care is taken.
(iii) It must not be a commonly engaged in activity by persons in the community. Example: In RYLANDS v. FLETCHER (1868), the House of Lords held a mill owner strictly liable when a neighbor's mines were flooded by water escaping from the mill owner's reservoir. This was considered an abnormal use in "mining country." (Other examples include blasting, manufacturing explosives, crop dusting, and fumigating).
The minority of courts that follow the R2T approach also take into account the value of the activity and the appropriateness of the location.
3. The rule of RYLANDS is that one is strictly liable to adjacent landowners when he brings an artificial and unnatural device (reservoir) onto his land, and the unnatural device causes something to escape from the land and harm another's land or property.
Blackstone emphasized damage caused by escaping forces. Cairns emphasized non-natural uses.
If the water had accumulated naturally and run off onto adjoining land, there could be no complaint. But here, D had constructed an artificial reservoir, which burst and flooded P's coal mines.
This case is distinguishable from traffic and other cases that require proof of a D's negligence for recovery. They involve situations where people have subjected themselves to some inevitable risk. Here, there is no ground for saying that P took upon himself any risk arising from the use to which D chose to put his land.
Why need strict liability for RYLANDS: 1) did not know about caves, not foreseeable. 2) hired competent contractor. 3) no vicarious liability for acts of independent contractor. 4) concept of nondelegable duty (to build reservoir in safe manner) did not exist yet.
Why no sue indep. contractor directly? Not in privity of contract.
When damage is done to personal property or even to the person - there must be fault/negligence for liability.
4. Strict liability is appropriate for injuries caused by blasting, where Ds blast a tree on D's property, and the explosion throws a piece of wood onto a highway killing a woman. The deceased's right to safety is greater than D's property right. P's injuries arose directly from D's activity. Strict liability is imposed even for employers of independent contractors. SULLIVAN v. DUNHAM
Activity is taking place on their property and for their benefit, therefore they must bear the loss vis-a-vis an innocent third party. Species of vicarious liability here, nondelegable duty. Here we have damage from direct result, not indirect result (concussion) so no proximate cause issue. If damage from concussion, then negligence must be proven.
nondelegable duty for safe blasting.
5. If you store explosives, then you are strictly liable for any damages. Even where thieves break in and deliberately set off explosives, the owner of the business storing the explosives - even though without fault, rather than the injured third party, should bear the loss. The use involved here was an abnormally dangerous one. The court felt that breaking and entering by thieves was foreseeable to owner, since thieves had previously broken into the warehouse - owner on notice. Proximate cause solved. YUKON EQUIPMENT v. Fireman's Fund Insurance Co.
We do not believe the Restatement (Second) should be used in cases involving explosives. Why is Court reluctant to conclude this activity is not abnormally dangerous?
The court, not a jury, should decide whether the activity is abnormally dangerous - mixed fact and law decision, concern jury might get carried away.
The R2T factors suggest a negligence (reasonable person) standard that may well be necessary where damage is caused by unique hazards and the question is whether the general rule of absolute liability applies. Do not want to use negligence concept.
sic utere tuo ut alienum non laedas - be good to your neighbor, use property so as not to harm others.
strict liability would still apply if the act was done negligently, accidentally, or recklessly. Without prior notice, strict liability would end with intentional acts by third parties - superseding acts.
6. The (First) Restatement allowed strict liability for ultrahazardous activities. Those were activities that were not of common usage and whose risks of serious harm could not be eliminated with utmost care.
The R2T allows strict liability for abnormally dangerous activities. Rather than declaring the elements that must be met, the R2T proposes SIX factors to be balanced in deciding strict liability for ABNORMALLY DANGEROUS ACTIVITIES: We don't have to use all six. (1/6 rule)
1) Whether the activity involves a high degree of risk.
2) Whether the gravity of that risk is high.
3) Whether the risk can be eliminated with reasonable care.
4) Whether the activity is not a matter of common usage.
5) Whether the activity is appropriate to the place where it is being carried out.
6) Whether the value to the community is outweighed by the danger.
7. There may be strict liability imposed for damage caused by products, depending on the theory used by a court in resolving such problems.
8. If strict liability, then D's proffer of "all due care" is irrelevant.
9. Why do we impose strict liability for reservoir and blasting, but not for steam boiler exploding (Losee v. Buchanan 1873)? Losee reasoning is that we have to externalize some of the costs or these enterprises would not take place in the first instance. If steamboiler had been operated negligently, then we would have liability. Here steamboiler is a "natural use."
C. EXTENT OF LIABILITY
1. Scope of Duty Owed
As contrasted with negligence, the duty owed is an absolute duty to make safe the animal, activity, or condition that is ultrahazardous, and liability will be imposed for any injuries to persons or property resulting therefrom.
a. To Whom is the Duty Owed?
In most states, the duty is owed only to "foreseeable plaintiffs" - persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. (Generally, strict liability will not be imposed on a D's blasting that hurled rock onto a person so far away that no reasonable person would have foreseen a danger. However, some courts find liability for all blasting harm due to the intrinsic danger of D's activity).
b. Duty Limited to "Normally Dangerous Propensity"
The harm must result from the kind of danger to be anticipated from such dangerous animal or ultrahazardous activity, i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved.
Example: D's toothless pet leopard escapes from its cage without fault on D's part and wanders into a park, causing P to break her arm while trying to flee. D is strictly liable to P.
Compare: D's gasoline tanker truck blows a tire without warning and hits Pedestrian. D is not strictly liable to Pedestrian. However, if the truck then crashed and exploded, and the explosion injured Bystander, D would be strictly liable to Bystander.
2. Proximate Cause
D's liability can be cut off by unforeseeable intervening forces.
3. DEFENSES
Contributory Negligence - no defense to strict liability unless P's negligence was the cause of the ultrahazardous activity.
Assumption of risk - this defense may be asserted against a P who voluntarily encounters a known danger and by his conduct expressly or impliedly consents to the risk of the danger.
Comparative negligence. Some courts in comparative negligence jurisdictions have been willing to reduce P's recovery to reflect the amount that his fault contributed to his injury.
Injury within the risk created. For strict liability to be imposed, the injury must have been within the group of risks that made the activity ultrahazardous.
1) Different risk. Example: D conducted blasting operations. P incurred damage when his minks became frightened by the blasts and killed their kittens. Since the danger of flying debris made the blasting ultrahazardous and since the resulting harm was not from that which makes the activity ultrahazardous, strict liability was not imposed.
2) Unforeseeable intervening cause. Even where the damage is within the foreseeable risk, the majority holds that there is no strict liability if it was brought about by an unforeseeable intervening cause, e.g., an act of God or the intentional acts of third persons.
II. PRODUCTS LIABILITY
A. Common Law
At early English common law, defective product liability was grounded in either tort or contract. Tort actions grounded in deceit - breach of assumed duty. In Winterbottom v. Wright 1842, the court rejected the claim against a coach repairman by a passenger injured when the coach collapsed (the repairman had agreed with the owner to keep it in repair). The court felt the most absurd and outrageous consequences would result if those not in privity of contract were allowed to sue in contract. Pre-MacPherson, buyer had to have some privity relationship to manufacturer (third party beneficiary) for warranty to apply. Why privity? Foreseeable P.
EXCEPTION: hazardous poison, Thomas v. Winchester.
B. Intentional Acts as a Basis for Liability. If a manufacturer or supplier of a chattel sells it with knowledge, or with reason to know, that it is dangerous or defective, and fails to warn of the danger or defect, the party may be liable for a battery to any person injured through use of consumption of the product. The requisite intent is established by showing that the injuries suffered were substantially certain to result from use of the chattel in the condition as sold by the manuf. or supplier.
C. WARRANTY
If no express warranty but a merchant - implied warranty of merchantability for usual use. Can be implied warranty for particular purpose.
Person sells used tractor in noncommercial setting and says "engine is in good working order" - innocent misrepresentation. Is he liable for negligent misrep? If seller stated "no problems for 6 months" - express warranty, strictly liable.
At common law, warranty actions were aimed at economic loss, not personal injury. Applies whether manufacturer at fault or not.
(Strict liability - must show causation. Contributory negligence not a defense.)
a. Express
b. Implied
- fit for intended purpose
- merchantability
Originally, liability limited to one who purchased product. This theory required privity.
D. INTRODUCTION TO MODERN LAW
1. Negligence as Basis for Product Liability. Foreseeable risk of harm. P has recourse against manufacturers and suppliers of defective products on a negligence theory of relief. Privity between the manufacturer and P is NOT necessary for P to recover against the manufacturer. MACPHERSON v. BUICK MOTOR CO. (P thrown from car when a wheel with defective wooden spokes collapsed.)
If a reasonable person would have foreseen that the product would create a risk of harm to human life or limb if not carefully made or supplied, then the manufacturer and supplier are under a duty to all foreseeable users to exercise reasonable care in the manufacture and supply of the product.
Court defines "imminently dangerous" product as = any negligently made product = any product. Still insisting on negligence, not strict liability.
2. Extensions of the MacPHERSON rule.
(i) Damage to the product sold resulting from its own defect
(ii) Damage to reasonably foreseeable nonusers in the vicinity of the expected use of the product.
(3) Damage caused by defects in design as opposed to defects in manufacture.
(iv) Damage to property in the vicinity of expected use, where the product itself is dangerous to life and limb because it is negligently made.
(v) Liability for products negligently manufactured but posing a foreseeable risk to property only. lawyers,
(vi) Liability of a processor of a product at an intermediate stage.
(vii) Liability of those who sell others' product as their own (including dealers, distributors, and any other party in the chain of sale).
3. Res Ipsa Liability and Emergence of Strict Liability. Use of the doctrine of res ipsa loquitur eased P's burden of proof. ESCOLA v. COCA COLA BOTTLING A waitress was injured when a coke bottle exploded in her hand. The circumstances of the injury are held to create a rebuttable presumption of negligence. COKE tries to rebut suggesting reasonable inspection, but waitress wins. (In general, reason P might have wanted to try on negligence theory of recovery: jury awards are higher if you can prove fault.)
TRAYNOR's concurring opinion foreshadowed strict liability: Manufacturers ought to be strictly liable for injuries caused to consumers by defective goods. Public policy dictates that manufs. ought to pay the cost of the injuries they cause. Why is res ipsa not sufficient? P might not win, but all the same policy reasons apply. Why isn't warranty sufficient? It requires privity of K, would not compensate bystanders.
Strict liability is also justified because the consumer is unable to inspect closely modern complex products. The manu. can better bear the cost and control the quality. Therefore, impose liab. on party best able to avoid (incentive), and enterprise liability - internalize costs.
Strict liability begins to emerge for food, drink, cosmetics - any product with close bodily contact.
4. How do we tell for which products we compensate for injury? 1) Product used properly, 2) adequately maintained, } Unreasonable danger
If renting a limousine or taking a taxi ride and brakes fail, cannot recover under R2T § 402(A) for services. Can hold lessor of car liable, because it is effectively a purchase - which is covered by R2T.
Someone uses screwdriver to open can, handle breaks. Intended use - no, foreseeability - yes } depends on jurisdiction.
5. Consider manufacturing defects, design defects, and information/warning defects.
a) R2T § 401 places a duty on dealers and distributors to reasonably inspect their products that are inherently dangerous in normal use and to remedy, or warn buyers against, such defects or dangers. The failure of the dealer to inspect, however, does not relieve the manufacturer of its obligations since the dealer's omissions are considered foreseeable.
b) R2T § 402 does not place such a duty on the dealer where the products are manufactured by others and are not inherently dangerous to in normal use. In such cases, the manufacturer is still liable under the MacPherson rule, and the dealer maybe liable under the theory of warranty or the theory of strict liability. But if the dealer discovers the defect, the common law rule will make the dealer liable to any injured P who was not warned of the defect prior to the sale. This failure to warn of the known defects will operate as an unforeseeable intervening force with respect to the manufacturer's negligence and will relive it of liability under a negligence theory.
c) The defenses available to a D under a typical negligence action (e.g., compar. negli., assump. of risk) may be raised by a D in a products liability action grounded in negligence.
6. FOUR TESTS to determine whether product is defective:
(1) CONSUMER EXPECTATIONS - consumers have no choice on reinforcements, location of gas tank, etc. Not good for design defects. Works well with cola bottles, screwdrivers, and probably lathe tool in Greenman. No consumer ever expects to be hurt with product. Therefore P will always win. But others argue this test does not protect against obvious dangers.
(2) RISK/UTILITY - if risk inherent in the challenged design outweighs the benefits. This shifts burden of proof to D to show his product is safe. Does not always work in manufacturing defects. Applies to manufacturing defects via inspectors or slowing down assembly line. True costs include not only cost of safer alternative, but also good will and no forced recall and no punitive damages.
(3) REASONABLE USE (negligence type).
(4) SAFER ALTERNATIVE
If we abandon the consumer expectations test, the consumer only has to show that some product has injured him. Then manufacturer must prove it acted reasonably.
7. CRONIN says whether manufacturing or design defect should not matter; consumer must only show product is defective, (forget about unreasonably dangerous).
B. DESIGN DEFECTS
1. Strict liability. The seller is held strictly liable for injuries caused to the P irrespective of the seller's negligence or even his exercise of all possible care. The rationale for this theory of liability is that the D is considered better able to assume the risk of loss through insurance or otherwise than is the innocent consumer.
2. R2T § 402(A) requires the product be in a defective condition unreasonably dangerous. Users or consumers may recover for physical harm from sellers of the product. MANUFACTURER not covered. P has burden of proof. Focus on product, not conduct of manufacturer.
3. Defects
The defect in a design case is the result of a condition intended to exist by the manufacturer. The P claims that a design choice carries a risk of harm in normal use.
P must prove the design is a defective condition that is unreasonably dangerous (judged from reasonable consumer standard).
4. RISK/UTILITY test applied. BARKER v. LULL ENGINEERING (Col. 1987). Man injured while operating a high-lift loader manuf. by Lull. P alleged the loader was defectively designed. Calif. rejected the unreasonably dangerous language and refused to apply a test based on consumer expectations: consumers have no choice on reinforcements, location of gas tank, etc. Not good for design defects. All products must meet ordinary consumer expectations for safety as a bare minimum. A product may also be defective if its benefits are outweighed by the risk of danger it creates.
Ordinary consumer would not expect a high lift to overturn when used under normal conditions. Looking back with hindsight, ask whether a reasonable manufacturer would have acted this way. Court prefers "foreseeable use" instead of "intended use." If P shows injury caused by product, then D must justify his design. Similar to Campbell, no handpole on bus. IN THESE TWO CASES PLUS CRONIN WE SEE A TREND - Ps ARE ABLE TO GET TO THE JURY. California is focusing on shifting the burden of proof to D.
COMMENT: Ordinarily, proof of a feasible alternative design is necessary to prove the design defect case.
5. The crashworthiness doctrine - Man involved in motorcycle accident, in which cycle had no leg guards. Absence of leg guards did not cause injury, but aggravated it. (Concurrent cause situation). Court adopts "crashworthiness" doctrine, under which a motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manuf. or design defect causes or enhances injuries. Camacho v. Honda Motor Co.
Uses risk/utility test but does not shift burden: a) utility to user and public as a whole. b) safety aspects - likelihood of serious injury. c) availability of a substitute. d) manufacturer's ability to eliminate efficiently unsafe characteristics. e) users awareness of the products danger.
Consumer expectations test is no good, because it excludes open and obvious dangers. For these dangers, manufacturers would have no liability. It unjustly imposes liability for latent defects but not for patent defects. (But really does, because no consumer expects to get hurt.) OBVIOUSNESS of danger may still be relevant for assumption of risk. CAMACHO v. HONDA MOTOR CO.
Turns focus away from consumer and looks solely at product.
6. How do we tell when to cut off liability? Loose button on shirt, eraser breaks off pencil } usual proximate cause issues. For case where man gets shirt sleeve caught in manufacturing equipment and is injured, consider suing the manufacturer of the machine instead of the shirt manufacturer. Component part manufacturer often do not know the intended purpose.
Misuse. If P misuses the product or engages in abnormal use that was not foreseeable, D will not be held liable, even under a strict liability theory.
When is use abnormal? When P fails to follow D's directions and instructions.
Foreseeable misuse. Where an unusual or abnormal use should be anticipated by D (e.g., sailor walking over containers used for transoceanic shipping was injured when he fell through a defective container; this is abnormal but foreseeable), strict liability may apply.
7. Hypotheticals: 1) Absence of anti-lock brake system as basis for aggravating injuries? No recovery by assumption of risk, economic choice for the consumer. 2) lawnmower without guard rail? By making the manufacturer liable, we will force the safety innovation.
C. WARNING/INFORMATION DEFECTS
Tests: (1) hindsight test (more like strict liability), (2) Reasonably foreseeable test (more like negligence): negligent warning, negligent testing, research, sales, and promotion.
1. Two Reasons to WARN: 1) How to use product safely - intended use, unintended use, preserve; 2) Warn of inherent dangers, e.g., cigarette warning.
2. Adequacy of warning. Whether D adequately tried to communicate a warning to the ultimate user and whether the warning was adequate are questions of fact for the jury. No clear rule for what is adequate. Jury must decide using a reasonable person on notice - negligence, rather than strict liability standard.
Ps contend the danger posed by D's product when ingested by small children was great enough to require more than small print "external use" and to the "poison control center" and "keep all medicines out of the reach of children" were sufficient to convey the message to an average adult that there is a risk of serious harm if a child swallows the medicine. Hahn v. Sterling Drug (The Campho-Phenique Case).
3. Duty to warn. A manufacturer has a duty to warn if it was foreseeable to the manufacturer that the product would be used in a dangerous manner. There is no duty to warn of an improper use that could not have been foreseen. Where safety guards are removed from machine, and all safety devices on the switch were permanently attached and did not require removal for any type of maintenance, the circumstances did not make it foreseeable to parts manufacturer that such misuse would occur. If the parts could be removed for maintenance and cleaning, then it would be foreseeable that the shields would not be put back on. Huber v. Niagara Machine
Difficult for component part manufacturer to communicate warning through manufacturer to consumer. Ordinarily, failure to warn = negligence cause of action. Workers compensation is only remedy against employer, therefore P in this case is trying to sue someone else in product liability.
4. FABERGE COLOGNE CASE - manufacturer held liable for not warning that cologne was flammable.
5. MACDONALD v. ORTHO PHARM. CORP As a general rule, the physician acts as an intermediary to convey warning from manufacturer to patient. Learned Intermediary Rule - for most prescription cases, manufacturer should warn doctor, and then prescribing doctor must relay warning to patient or determine if drug is appropriate. (Manufacturer can be directly liable to consumer for breach of this duty -third party beneficiary.) However, in cases like the pill, where patient has limited contact with doctor (annual refills, subsequent points in time when alternatives can be chosen), this rule may not apply: providing info. to doctor is not sufficient.
States may impose a higher duty to warn than the FDA. FDA does not preempt state requirements. Where a trier of fact could reasonably conclude that a manufacturer's compliance with FDA requirements did not adequate apprise oral contraceptive users of inherent risks (strokes), the manufacturer should not be shielded from liability by such regulatory compliance. The jury could have found that the lack of reference to "stroke" breached D's common law duty to warn.
6. CIPOLLONE v. LIGGETT GROUP U.S. Supreme Court considered whether federal statutes preempt state law in claim by woman who contracted cancer from smoking cigarettes. Court finds federal law preempted state (common and legis) law on (1) failure to warn, (2) neutralization of federally mandated warnings to the extent those claims rely on omission or inclusions in respondent's advertising or promotions. Claims for express warranty, intentional fraud and misrepresentation, and conspiracy are NOT preempted. (Safer alternatives and risk > utility claims not before the court) Family subsequently abandoned the case due to lawyer costs; therefore, still no case where cigarette manufacturers have been held liable.
Medical devices - liability is preempted by federal statute in certain cases.
7. Unavoidably unsafe products WHITE v. WYETH LABS This case concers a manufacturer who knew about a product's dangerous propensity and a question arises about the adequacy of its warning.
DTP vaccine is an unavoidably unsafe product, therefore D is not strictly liable for injuries DTP causes. D provided adequate warning with its DTP vaccine and thus is not strictly liable. Negligence can be used.
A manufacturer of an unavoidably unsafe product is not strictly liable provided the product was "properly prepare, and accompanied by proper directions and warning." Safer alternative? No manufacturer in the US was licensed by the FDA at the time of events pertaining to this case to use other, safer vaccines in the manufacture of DTP that would have immunized children against whooping cough just as effectively and with less risk.
A manufacturer of an unavoidably unsafe prescription drug provides adequate warning when "it reasonably discloses all risks inherent in the use of the drug of which the manufacturer, being held to the standards of an expert in the field, knew or should have known to exist."
D's warning was adequate, and perhaps even overly inclusive. In addition, the FDA had reviewed and approved D's warning. Reasonable minds could only conclude that the warning was adequate and therefore the issue should not have been submitted to a jury. Court decides as a matter of law.
We are better off in society be requiring vaccines even though some children will suffer dire consequences. Congress has set up a fund to compensate immunization victims. If follow the tort route, P would have to contend with 1) Comment K applies; 2) learned intermediary rule.
§ 402(A), comment K (Unavoidably unsafe products) only applies to known but reasonable risks, e.g., rabies vaccine. It only applies to unknown risks. Whether a product is "unavoidably unsafe" under Comment K is determined on a case-by-case basis. Seems to impose a negligence standard.
Should Comment K apply to over the counter drugs? It would encourage the manufacturer to bring new drugs to the market. The courts have no consensus.
Comment K = some products where a manufacturer can warn away its liability.
8. Know of danger. In order to hold a D liable for failure to warn, additional burdens are imposed on the P. The P must prove that the D knew or should have known of the danger.
A manufacturer who subsequently learns of a danger has a duty to give adequate warning both to new users and past users to the extent possible to warn of newly gained knowledge.
9. Held to knowledge of expert in field. FELDMAN v. LEDERLE LABS In fulfilling the duty to warn, a manufacturer is held to a higher standard than the information available in the scientific community. A manufacturer must be held to the level of knowledge of an expert in the field in which it operates. It must be held to know things that are reasonably obtainable. In addition, D bears the burden of proving the absence of such information: burden shifting. (drug caused discoloration of teeth)
Where you know of dangers or could/should have reasonably known, then strict liability applies. The D has burden to prove the information for the warning was not reasonably available, in strict liability cases. In this case, as distinguished from Wyeth, the manufacturer did not know about the dangerous effects. Therefore, he had no duty to warn. (Looking with hindsight, the manufacturer would have included a warning about teeth discoloration.)
10. Applies Strict Liability with HINDSIGHT. BASHADA. Asbestos case. Knowing what we know now, was the warning adequate? Seems unfair. Focus on product not conduct: 1) spread the risks, 2) incentives for research, 3) reduce administrability. Manufacturer stuck here with unknown risks. Imputes knowledge backwards. BASHADA is the exception. So much asbestos litigation, that the question of the point in time at which P learned of injury is irrelevant. A reasonable manufacturer would not have known of the danger, and consequently, had no way of knowing that it needed to warn of the danger, but the court says that does not matter.
D. STRICT LIABILITY BEYOND PRODUCTS?
R2T § 402(a) requires that the D be a seller of goods in order for strict liability to attach. Providers of services may only be held liable for negligence.
Provider of Service. HOVEN v. KELBLE. Where P's husband suffers a cardiac arrest during a lung biopsy, strict liability DOES NOT apply to medical malpractice. Strict liability would require virtual perfection in the area of health care. (If a cure is known, it must be applied perfectly.) The standard would be measured by "hindsight" after the injury occurred. Medical treatment is at times experimental and is of great necessity. Strict liability would make it less available to the public.
Example: If apply an unsterile dressing, is physician liable? Probably not. See MURPHY (holding pharmacist not strictly liable merely because he sells prescriptions). Similarly, a dentist is not strictly liable for a needle which breaks in a patient's jaw.
Applicable to legal services? Will vs. collision dispute. Expect fewer nonenforceable wills to be drafted than collision cases to be won. But most likely attorney will be subject to negligence suit anyway.
STRICT LIABILITY: focus on the product, not the conduct. Higher standards and shifting burden of proof. California courts focus on shifting proof. BASHADA - quintessential case: reasonable manufacturer would not have known of danger, but court says that does not matter. The word "defective" seems to imply negligence.
A beautician has been held to be operating a commercial venture, therefore she is strictly liable for applying injurious permanent solution. Distinguish from providing medical services.
ISSUES: 1) itemize bills - charging for products, 2) makes a profit, 3) some courts distinguish between medical vs. administrative services, 4) cost of enterprise: girl dies in dentist's chair.
HAMMONTREE v. JENNER Epileptic driver suffers a seizure and crashes into a store. Took elaborate precautions. In this case, neither party is at fault, and driver held NOT liable. P would have done better to argue for strict liability based on abnormally dangerous activity (generating risks as in the blasting case), rather than argue that any stroke victim should be held liable for car accidents (overly broad jury instruction). Court leaves the costs where they lie.
E. DEFENSES
1. Contributory Negligence. In a contrib. negli. jurisdiction, contributory negligence is NO DEFENSE where the action is based on strict liability. But where the user discovers/recognizes the danger, and nevertheless proceeds unreasonably, then assumption of risk may be asserted as a defense. Of course, contrib. negligence is always a defense in an action based on negligence.
2. Comparative Fault. DALY v. GENERAL MOTORS Strict liability is not absolute liability. The manufacturer is only liable for the injuries it causes. Although it appears that the court is mixing "apples and oranges," it is not. It is only allocating the loss according to the percentage of causation that each party contributed to the accident. The court therefore prefers to use the term "comparative fault" rather than "comparative negligence." Comparative fault applied in California to PROSPECTIVE injuries.
If P is responsible for part of the accident, then the manufacturer's strict liability is offset by the P's percentage of fault.
Lack of attentiveness will NOT invoke comparative negligence. A product is supposed to be manufactured with safety guards just for such inattentive uses.
Joint and several liability, especially when fault is attributed to a nonparty, can have a big impact on recovery.
Argument against adoption of compar. fault to strict products liability cases: The jury will be unable to reach a fair and just decision. The facts to consider are too complex for a jury's ability. Jury must decide P's negligence and D's strict liability.
F. WARRANTY / ECONOMIC HARM
1. Warranty as a basis for liability.
An express warranty is an (1) affirmation of fact or promise made by the seller about the product sold which acts as an inducement to the purchaser to buy the product. UCC § 2-213 states than an express warranty can be created by such an affirmation of fact or promise, by any description of the product which is made part of the (2) basis of the bargain, or by furnishing a sample or model where the product is represented to conform to such sample or model. (3) The affirmation or promise must be false. Words "guarantee" or "warranty" need not appear anywhere in the transaction for such a warranty to arise. The affirmation of fact or promise may be expressly included in the contract by written representations or oral statements made by the supplier, or by a salesperson, or through advertising, or otherwise. The courts have made an exception for statements of opinion or "puffing language"; however, the risk that such a statement may be construed by the courts as an express warranty is on the seller, and the tendency has been to find that such statements are warranties where such a construction is reasonable.
2. Personal injury. THE GOLFING GIZMO case. When P used the device, he swung at the ball, the cord wrapped around the golf club, and the ball struck P in the head. The ball had been sold with the statement "completely safe - ball will not hit player." P sued under 4 theories of recovery.
The claim clearly states a common law misrepresentation action. The statements made with the sale were clearly affirmations of fact. As such, they are express warranties under the UCC: the UCC provision applies to personal injury. Strict liability is also appropriate for this device. P also sued on implied warranties.
Misrepresentation - used the statutorily adopted parts of the Restatement § 402(b) to hold D liable. Restatement § 402(a) uses implied strict liability, which states a seller is liable for harm caused by his product when sold in a defective condition. § 402(b) uses express warranty to get the seller for any justifiable reliance by buyer of any misrepresentation of material fact. NO SCIENTER requirement; still liable for innocent misrepresentations.
Express Warranty - comes from statutory adoption of UCC by California. Note difference between actual statement and "puffing." Broader than § 402(b), because could include fact or opinion. Examples: "just as good" "You'll hit like Jack Nicklaus" Maybe not: "good for lifetime"
Implied Warranty: 1) of Merchantability that the product will conform to the promises or affirmations of fact made on the container or label, the goods are of fair average quality and reasonably fit for the general purposes for which they were sold; and 2) Fit for Intended Use - that the product will perform in its (particular) intended manner. Where seller has reason to know the buyer is purchasing for a particular purpose, the law implies a warranty in the sales transaction that the goods are suitable for the special purpose of the buyer.
Strict Liability - P has proved that the product was defective in design and that it caused the harm.
The golf gizmo may be an example of a product whose risk/utility ratio is so low that perhaps it should never have been marketed. If the box had contained a disclaimer against personal liability, it would be ineffectual. It would be UNCONSCIONABLE to try to limit injury liability on consumer products.
3. ECONOMIC HARM
Pure economic loss. Using tort theories to recover damages when the only loss is purely economic is difficult. Courts have generally been reluctant to allow consumers to use strict products liability as a basis for recovery when the only loss suffered is an economic loss. Section 402A of the R2T indicates that such recovery is to be limited to "physical harm .... caused to the ultimate user of consumer, or to his property."
Damage to the Product Itself. When the defect in the product causes the product itself to be damaged and additional economic loss to be suffered, but no other harm is caused, the majority rule refused to extend the applicability of strict products liability.
Application to admiralty law. EAST RIVER v. TRANSAMERICA DELAVAL The CHARTERED SHIPS case. Ship charterers tried to recover for lost profits and repair costs. Court held P cannot recover in strict liability for a defective engine turbine when the only loss is purely economic loss of damage to the product itself. Tort theories are designed to protect the injured party from dangerous conditions that could harm the P or his property. Where the loss is of the product itself, the loss can more properly be covered by a bargained-for exchange. Contract remedies, specifically here the warranty rights, are the appropriate method of handling such problems.
A manufacturer in a commercial relationship has no duty under either a negligence or a strict products liability theory to prevent a product from injurying itself. Must sue in warranty under contract law. Don't want contract law drowning in a sea of tort. Tort would defeat parties intent to contract. Potentially limitless liability for subcharterers, etc.
May want to sue in tort to circumvent the problem of privity needed for contract suit. Also, one can recover punitive damages in tort. Party bargained away his contractual remedy. Price of charter reflects his assumption of risk; therefore, suing in tort.
If harm to P or his property occurs, then can also recover for damaged turbines as well. If plates break due to engine vibrations, proximate cause problem.
Like percussion effects in blasting case.
Distinguish Far East from People's Express Airline, in People's Express no other means to recover aside from tort liability, therefore court allows tort recovery for purely economic losses. But Far East represents the majority view in the U.S.
G. TENNESSEE'S PRODUCT LIABILITY STATUTE
1. Statute uses FORESEEABILITY rather than INTENDED-USE as test for liability. Manufacturer not liable for unforeseeable, abnormal uses.
2. Consumer can sue for either defective condition or unreasonably dangerous product. R2T § 402(a) requires both defective product AND unreasonably dangerous.
3. Defective = unsafe for normal or foreseeable use; Unreasonably dangerous = consumer expectations test, possibly Barker risk/utility test.
4. No liability if product is safe when it leaves the hands of the manufacturer and unforeseeable changes occur.
5. No strict liability for product if the danger is an obvious danger.
6. Statute is ambiguous as to timing of knowledge for adequacy of warning: imputed knowledge v. knowledge at the time of sale.
7. No strict liability if the government sets the standards and the manufacturer complies with the standards.
8. Pharmacist is not liable because he is providing a service, Murphy, not a sale. Also, to the extent the manufacturer seals the drugs in containers, the pharmacist has no duty to inspect. Warranty claims exluded. If manuf. is insolvent or can't be served, then can hold a pharmacist liable.
9. Statute of limitations: 6 years from date of injury, in any event within 10 years from date of purchase (could potentially bar DES-type claim > 10 years to manifest) or within 1 year of after expiration of product life.
R3T - movement toward negligence and away from strict liability for product liability.
III. NUISANCE
Nuisance refers to interference by D with a right of P to the use of enjoyment of property. Nuisances are types of damages or harm. It is best considered as a field of liability rather than as a particular tort. Utility of D's activity < harm to P's interests, or harm is greater than P should be expected to bear without compensation. Each possessor of land is privileged to use her own property or to conduct her own affairs at the expense of some harm to her neighbors -if "unreasonable," then it will constitute a nuisance. unreasonable all due care. Utility/harm comparison. Nuisance is a recurring event.
1. Kinds of Nuisance. There are two kinds of nuisances.
a. Public Nuisance refers to interference with a right common to the general public. (health hazards, improper businesses, obstruction of public streets). ELEMENTS: substantial harm, must injure public at large, most codified under state law; Standing to Sue requires difference in kind, not degree. Example: commercial fishermen may have an interest different from other public water users and thus may be able to due a water polluter as opposed to a jet skier.
b. Private nuisance refers to an unreasonable and substantial interference with the use or enjoyment of an individual's property interest in land. It is distinguished from trespass in that it does not require a physical entry upon P's premises. It follows from the principle that everyone should use her property so as not to injure the property of another. No requirement for ultrahazardous or abnormally dangerous.
2. Basis of Liability
a. Three bases: 1) Intentional conduct; 2) Negligence; or 3) Strict liability.
b. Substantial interference. There must be a substantial interference with the use and enjoyment of land that would be offensive to a reasonable person of ordinary sensibilities. Harm to P outweighs the utility of D's conduct.
c. Locality. The nature of the locality becomes an important factor here. The courts must determine what is a reasonable use within the context of custom of the community.
3. Judicial Zoning -- BOOMER v. ATLANTIC CEMENT The residences of Boomer and others (Ps) suffered damages from dirt, smoke, and vibrations emanating from Atlantic Cement's (D's) large cement plant. Example of strict liability: irrelevant if D exercised due care; liability without negligence. 1) Permanent damages may be awarded in lieu of an injunction where the value of the activities sought to be enjoined is disproportionate to the relatively small damage caused thereby. Record servitude into title so that future purchasers are aware. Factory cost $45 million and employed 300.
2) Permanent damages are fair because they fully recompense the damaged property owner while at the same time provide an incentive to the business to abate the nuisance and avoid suits by others. How does one compute? Difference in value of property with and without the cement plant.
3) The granting of a short-term grace period in which to solve the problem prior to issuance of the injunction is impractical and will lead to requests for extensions. Furthermore, it puts the burden for correction of an industry-wide problem on one private enterprise.
COMMENT: In the absence of a statutory ordinance, courts must resort to "judicial zoning."
COMMENT 2: The "unreasonable" issue in a nuisance action can be handled at the remedy level as well. That is, if the P asks for an injunction but the value of the D's activity is great, the court (as in this case) may deny the injunction and permit the D to pay past damages plus future damages (for permanent injury to the P's interest).
SPUR INDUSTRIES, INC v. WEBB DEVELOPMENT The operation of Spur's cattle feedlot was both a public and a private nuisance to the citizens of Sun City, who could have maintained an action to abate the nuisance. Webb, having shown a SPECIAL INJURY in the loss of sales, had standing to bring suit to enjoin the nuisance. Court issues permanent injunction against the feedlot.
P ordinarily has no remedy if P knowingly came to the nuisance. It does not seem harsh to require a developer who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result. Webb must indemnify Spur for moving costs.
Who has standing to bring lawsuit for public nuisance: 1) public official, 2) private person who is harmed in manner over and above the way the public is harmed.
DISTINGUISH Boomer: 1) public health risk here; 2) greater economic value with city here, with the cement plant in Boomer.
4. Defenses to Nuisance Actions. The defenses available to the D depend upon whether her conduct has been intentional or negligent, or whether she is deemed strictly liable for the interference.
a. Contributory negligence is available only in situations where the nuisance is based on the negligent acts of the D.
b. Assumption of risk is available in situations where the nuisance is based on the negligent conduct of the D and where the nuisance is based on strict liability.
c. Coming to the Nuisance.
5. Remedies: injunctions and damages, or both. In some jurisdictions, and injured P may have the privilege of self-help to abate the nuisance. The P must use only reasonable force to abate the nuisance; such force, under the prevailing rule, does not include the infliction of bodily harm on anyone.
IV. DEFAMATION
Requirements at COMMON LAW: 1) false communication (P must prove falsity), 2) publication, 3) defamatory meaning, 4) of and concerning a particular person, 5) special damages (?) pecuniary damages. 5) person is alive - you cannot defame the dead.
INNOCENT CONSTRUCTION RULE - when words can be construed as innocent or defamatory, court will construe an innocent meaning to ambiguous words. Court decide according to the fair and natural meaning that would be given to words by reasonable persons of ordinary intelligence.
Absence of defamatory meaning. ROMAINE v. KALLINGER
Only the most contorted reading of the offending language in this novel could lead to the conclusion that it accused P of illegal drug use or criminal associations. The reasonable meaning of the critical sentence, "Maria was eager for news from Randi about a junkie they both knew who was doing time in prison," is that both women shared sympathy and compassion, not any predilection toward or involvement in criminal drug activity.
Imputation of Homosexuality. THE GOOD RATS CASE
The first remark about P's wife is clearly libelous; it could have been interpreted to mean that the club owner's wife was having an affair with one of the Ds. The second comment on the club owner's homosexuality was also reasonably susceptible of a defamatory connotation. The broadcast of statements over the radio has a wide dissemination and a greater capacity for harm: treated as libel. Special damages not required for recovery of damages due to defamatory on its face.
1. Of and Concerning Plaintiff
a. Identification required. One of the basic elements of defamation is that the statement be "of and concerning" the P. When extrinsic facts needed to indicate that the P is the one intended, this additional area of proof is referred to as colloquium.
b. Group libel. When a defamatory statement attacks members of a group generally, it is difficult for any one member of the group to seek a remedy. In order for any one member of such a group to recover: 1) % of the group: the statement must be understood to include all or, in some cases, most of the people in a group. It would be difficult, for example, for a member of a group to recover if the statement included only "some" or "a few" of the group. Success would be more likely for the P, if the statement referred to all of the group. 2) size of the group must be small. As the size of the defamed group increases, there is less chance for any one member of the group to recover. A defamatory statement about "all lawyers" would not be the basis for a claim by any one lawyer. Neiman Marcus Model case: group of 35 models/sales clerks at a store held small enough to permit recovery for defamation.
2. Strict Liability and Damages
a. Libel. Defamation usually appearing in some written form or reduced to some permanent, physical embodiment.
b. Slander. Slander is usually oral defamation - representations to the ear rather than the eye. The principal character of slander is that it is in a less physical form. Defamation through slander is not actionable without a showing of special damages, except for the four classes of slander per se. Special damages are usually a pecuniary loss.
c. Factors to consider in deciding between libel or slander: 1) The permanency of the form; 2) the area of dissemination; 3) whether the publication is deliberate or premeditated. R2T provides "broadcasting of defamatory material by radio or television is libel, whether or not it is read from a script."
d. Slander - damages
SPECIAL DAMAGES must be alleged in the pleadings and proved by the evidence. These damages are usually to recover pecuniary losses and had to be proven at common law for action in slander to lie. GATEKEEPER function - once in the gate, you can plead general damages. Under modern constitutional decision, P must prove actual damages in many cases. Punitive damages are given only when claimed in the pleadings and the evidence shows actual malice.
e. Slander per se - damages. Special damages do NOT have to proved for an action in slander in four (and only four) situations: 1) D charges P has committed a serious, morally reprehensible crime; 2) D imputes to P a presently existing, loathsome, communicable disease (AIDS, leprosy, etc., but not tuberculosis or insanity); 3) where D imputes to P conduct, characteristics, etc., incompatible with the proper performance of P's business, trade, or profession; 4) where D imputes unchastity to a female plaintiff.
f. Libel - damages
libel per se is libel that is defamatory on its face and needs no special damages. Example: "John is a criminal."
libel per quod - is not defamatory on its face and requires proof of special damages in order for any recovery to be allowed. Example: "John lives at 123 Fulsom street." Not libelous unless you know that is the address of the state penitentiary. However, the libel per quod is in one of the four slander per se categories, Wertheimer teaches that P doesn't have to prove special damages.
3. CONSTITUTIONAL PRIVILEGE
Since 1964, the tort of defamation is no longer always a strict liability action. If P is public figure, he must prove (1) D knew statement was false or (2) recklessly disregarded the truth or falsity. If P is private figure and the matter is one of public concern, at least negligence must be proved.
NEW YORK TIMES v. SULLIVAN
Montgomery, Ala. commissioner sues the Times and Alabama ministers (to prevent removal to federal court) for defamation over an advertisement with some false statements in the Times. Most difficult proof for P in this case: "of and concerning" him. A public figure must prove actual malice with convincing clarity. A public official cannot recover damages for defamation unless he can prove actual malice: (state of mind), (Prerequisite for both compensatory and punitive damages).
Actual malice - publishing with knowledge of falsity or reckless disregard for investigating the truth. SUBJECTIVE TEST. reckless disregard = a reasonably prudent person would not have published or would have done further investigation. P must prove "clear and convincing evidence" (not merely preponderance of evidence) of actual malice. ????
Protection of statements made in the exercise of a First Amendment freedom has never depended upon the truth of the statement. A state case law rule compelling a critic of official conduct to guarantee the truth of statements on pain of a libel judgment imposes self-censorship and a dampening of free choice. (then would not need privilege). State common law can violate the First Amendment. $500,000 damage award - not clear if jury found malice or used correct malice definition.
Insubstantial falsity probably would not trigger damages. Common law malice, as distinguished from constitutional "actual malice" is ill will.
Why wouldn't shifting the burden of proof solve problem: 1) D still have to prove case to get over jury qualms; 2) death by a thousand blows - shut down the press due to having to litigate so many cases, even if they ultimately win.
RULE: News media (and probably private citizens) can defame public persons as long as the publication occurs without the D's knowledge that the statement is false and without reckless disregard of the truth by D.
Two ways to become public figure: 1) voluntarily inject yourself into the public eye *** (more important of the two); 2) access to the media to present your side of the story.
CURTIS PUBLISHING v. BUTTS
Georgia football coach alleged to have passed along game plan to Bear Bryant. Butz brought libel case. Court decided he is not a public figure, therefore NY Times actual malice standard does not apply. Court does extend NY
Dr. Michael A. S. Guth, Ph.D., J.D. is a Professor of Financial Economics and Law for several universities with on-line degree programs and an attorney at law in Tennessee. He writes legal briefs and appellate briefs for law firms as well as his own clients. See http://riskmgmt.biz/ On the retail side, his law practice seeks to empower individuals to represent themselves in court without a lawyer. He assists these pro se parties by drafting court documents (pleadings) and performing legal research. See http://riskmgmt.biz/prose.htm for contact information.
The Benefits to Hiring a Lawyer
By Philipp Kostins
Some people may assume that hiring a lawyer and working with a lawyer during a legal issue will be comparable to the client/attorney relationship portrayed on television. However, the reality is that the proceedings are often very different.
While most television proceedings are highly charged and full of courtroom actions, your lawyer will probably doing more research, paper filing and phone work behind the scenes than actual courtroom litigation. Because motions and research that you will not see will make up most of your legal case, it is important to understand exactly what you should expect from your attorney.
By hiring a lawyer you will have access to expert legal experience, knowledge of uncommon laws, legal advice, support and open communication. This type of service is especially valuable for individuals with no prior knowledge of the law they are trying to fight. Experience can also help clients avoid costly legal mistakes that they might have made on their own.
Aside from the regular service provided by an attorney, you can also expect certain rights to be upheld during your client/attorney relationship. These rights include confidentiality, protection of your interests, diligent representation, and competent representation.
The right of confidentiality means that the lawyer cannot talk about or compromise any information that you pass along to them during the course of business. This information can include such mundane things as business ideas or operating secrets, but can also include such things as facts concerning your innocence or guilt.
The right of protection of your interests involves more than just confidentiality. It also means that your lawyer cannot represent any other client that has business that may be adverse to your business while representing you. This does not mean that a lawyer cannot represent both you and your partner in legal business matters, it just means that he or she cannot represent both of you if your interests in that business become a conflict, for instance, during the sell of your business. It also means that your lawyer cannot represent both you and the defendant in case, but they can, however, represent you and the owner of your competition as long as neither of you has legal business with each other.
The right of diligent representation means that your lawyer must put a fair amount of time into your case and use all of his or her available talents and knowledge to defend your side of the argument. Diligent representation also means that your lawyer has a duty to keep you informed of all aspects of your legal issue in a timely manner. If you find yourself conversing more with a legal aid than your own attorney, it may be time to rethink your relationship and look into hiring a lawyer that has more time to devote to your case.
The right of competent representation means that your lawyer must do all that he or she can to represent you in the best possible manner. If he or she is unfamiliar with an aspect of your case, then they must educate themselves on the issue or recommend you to another lawyer that can better handle your issue. Although your attorney has the right to take a reasonable amount of time to educate themselves on your case, some cases will be to complex to learn in a few days or weeks and your attorney should be professional enough to admit when they are in over their head and refer you another lawyer.
By understanding your rights as a client and the expectations of an attorney/client relationship you will be better able to choose a lawyer that is right for you. You will also be better prepared to aid your lawyer in your case and understand the legal aspects of each step along the way.
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Legal Terms
Law
Law (a loanword from Old Norse lagu), in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, intended to provide methods for ensuring the impartial treatment of such people, and provide punishments of/for those who do not follow the established rules of conduct.
Law is typically administered through a system of courts, in which judges hear disputes between parties and apply a set of rules in order to provide an outcome that is just and fair. The manner in which law is administered is known as a legal system, which typically has developed through tradition in each country.
Legal practitioners, most often, must be professionally trained in the law before they are permitted to advocate for a party in a court of law, draft legal documents, or give legal advice.
There are generally four broad legal traditions that are practiced in the world today.
Civil law
The Civilian system of law is a codified law that sets out a comprehensive system of rules that are applied and interpreted by judges. It is by and large the most commonly practiced system of law in the world, with almost 60 % of the world's population living in a country ruled on the civilian system.
The most important difference to common law is that normally, only legislative enactments are considered to be legally binding, but not precedent cases. However, as a practical matter, courts normally follow their previous decisions. Furthermore, in some civil law systems (e.g. in Germany), the writings of legal scholars have considerable influence on the courts.
In most jurisdictions the core areas of private law are codified in the form of a civil code, but in some, like Scotland it remains uncodified. The civil law system has its origins in Roman law, which was adopted by scholars and courts from the late middle ages onwards. Most modern systems go back to the 19th century codification movement. The civil codes of many, particularly Latin countries and former French and Spanish colonies closely trail the Code de Napoléon in some fashion. However, this is not true for most Central and Eastern European, Scandinavian and East Asian countries. Notably, the German BGB was developed from Roman law with reference to German legal tradition.
The importance of the Code Napoléon should also not be overemphasized as it covers only the core areas of private law, while other codes and statutes govern fields such as corporate law, administrative law, tax law and constitutional law.
Common law
The Common law is an Anglo-Saxon legal tradition, based on unwritten laws developed through judicial decisions that create binding precedent. The common law system is currently in practice in Australia, Canada (excluding Quebec), United Kingdom, and the United States (excluding Louisiana). In addition to these countries several others have adapted the common law system into a mixed system. For example, India and Nigeria operate largely on a common law system but incorporate a good deal of customary law and religious law.
Customary law
Customary law are systems of law that have evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. Note that customary law may also be relevant within jurisdictions following another legal tradition in fields or subfields of law where no legislative enactment exists. For example, in Austria, scholars of private law often claim that customary law continues to exist, whereas public law scholars dispute this claim. (In any case, it is hard to find any practically relevant examples.)
Religious law
Many countries base their system of law on religious tenets. The most dominant system of this form of law is Muslim law (or "Sharia") which is a codified law that is found within the Koran. These laws deal primarily with the personal rights and dispute resolution between individuals. It is used in some Middle Eastern nations, such as in Iran and Saudi Arabia.
On a smaller level there are still regions of the world that practice canon law, which is followed by Catholics and Anglicans, and a similar legal system is used by the Eastern Orthodox Church. The same can be said for Jewish law (halakha or halacha), which is followed by Orthodox and Conservative Jews, in substantially different forms.
Bodies of law
In the broadest sense, bodies of law can be subdivided on the basis of who the parties to an action are. It is frequent that practiced fields of law overlap into several of these bodies of law.
Private law
The area of private law in a legal system concerns law that oversees disputes between private individuals. This area is, to a large extent, the most comprehensive area of law, dealing with all non-criminal harm one person does to another.
Public law
The area of public law, in a general sense, is the law in a given legal system that concerns disputes between the government and private individuals residing within the country. The state can bring actions against people for criminal acts, as well as breach of regulatory laws.
Equally, individuals can bring actions against the government for harm it has done. This includes grounds on the basis of a breach of regulations, legislation on matters beyond their competence, or violation of an individual's rights. These last two points are often protected under a country's constitution.
Procedural law
Procedural law concerns the areas of law that regulate how all actions are dealt with. This includes who can have access to the court system, how complaints are submitted, and what the rights of the parties involved are. Procedural law is often known as "adjective" law as it is the law that concerns how other laws are to be applied. Typically, this is broadly covered by a government’s civil and criminal procedure rules. But this equally includes the law of evidence which determines what means are used to prove facts, as well as the law regarding remedies.
International law
International law governs the relations between states, or between citizens of different states, or international organizations. Its two primary sources are customary law and treaties.
Philosophy of law
Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as "What is the law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?" and many other similar questions.
In the Western tradition there are several schools of thought on the philosophical basis of law. First, there is natural law, which attempts to describe law as an inherent quality in humans that is derived from nature. Second, there is the positivism which believes that law is a purely human-made construct that society uses to maintain social order. Third, there is legal realism which believes that law is an arbitrary set of rules that are largely established through the tastes and preferences of judges. Legal interpretivism is a contemporary theory of law different from positivism and natural law.
Anthropology of law
Law has an anthropological dimension. It has been recognized from Montesquieu to the present that law is shaped by the kind of society in which it is practised.
One continuum into which various societies can be placed contrasts the "culture of law" with the "culture of honour". In order to have a culture of law, people must dwell in a society where a government exists whose authority is hard to evade and generally recognised as legitimate. People take their grievances before the government and its agents, who arbitrate disputes and enforce penalties. This behaviour is contrasted with the culture of honour, where respect for persons and groups stems from fear of the revenge they may exact if their person, property, or prerogatives are not respected.
Cultures of law must be maintained. They can be eroded by declining respect for the law, achieved either by weak government unable to wield its authority, or by burdensome restrictions that attempt to forbid behaviour prevalent in the culture or in some subculture of the society. When a culture of law declines, there is a possibility that a culture of honor will arise in its place.
The distinction between cultures of law and cultures of honour is anthropological, it does not concern directly philosophy of law nor an internal view point of law. In cultures of honour, most people will agree that they have a law. For most purposes, legal philosophers will also call their rules "law".
History
Legal history
Practice of law
Practice of law is typically overseen by either a government organization or independent regulating body such as a bar association or barrister society. To practice law--i.e., appear in front of a judge on behalf of someone, draft legal documents, etc.--the practitioner must be certified by the regulating body. This usually entails a two or three-year program at a university’s faculty of law or a law school, which earns the student an LLB degree. This course of study is followed by an entrance examination (e.g., bar admission). Advanced law degrees are also often pursued, though they are academic degrees and are not required for the practice of law. These include a Masters of Law (LLM), a Master of Legal Studies (MLS), and a Doctor of the Science of Law (JSD).
Once accredited, a legal practitioner will often work in a law firm, as well as in government, a private corporation or even work as a sole practitioner.
A significant component to the practice of law in the common law tradition involves legal research in order to determine the current state of the law. This usually entails exploring case reporters, legal periodicals, and legislation. The same is true in civilian systems when the interpretation of the law is not clear.
Lawsuit
A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. If the plaintiff is successful, judgment will be given in the plaintiff's favour, and a range of court orders may be issued to enforce a right, impose a penalty, award damages, impose an injunction to prevent an act or compel an act, or to obtain a declaratory judgment to prevent future legal disputes.
It usually involves dispute resolution of private law issues between individuals, business entities or non-profit organizations. However, it may involve public law issues in those jurisdictions that enable the government to be treated as if it were a private party in a lawsuit (as plaintiff or defendant regarding an injury), or that provide the government with a civil cause of action to enforce certain laws rather than criminal prosecution.
Rules of procedure and complications in lawsuits
Rules of civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution. Civil procedure is additionally constrained/informed by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules will generally reflect this legal context on their face. The details of procedure will differ from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. The rules are very important for litigants to know, however, because they dictate the timing and progression of the lawsuit--what may be filed and when to get what result. Failure to comply with the procedural rules can result in serious limitations in conducting the trial or even dismissal of the lawsuit.
Though the vast majority of lawsuits are settled easily and never even get to trial, they can expand into a very complicated process. This is particularly true in federal systems, where a federal court may be applying state law (e.g., the Erie doctrine in the United States) or vice versa, or one state applying the law of another, and where it additionally may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not, as a practical matter, even have the ability to enforce a judgment if the defendant's assets are outside their reach.
Lawsuits become additionally complicated the more parties that are involved. Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants, who each can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to separate out claims and parties into separate suits if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.
The Progress of a Lawsuit
The following is a generalized description of how a lawsuit may proceed in a common law jurisdiction:
Pleadings
The lawsuit begins with the plaintiff filing a complaint with the court. This complaint will state that the plaintiff is seeking damages or equitable relief from a stated defendant, and what the legal and factual bases for doing so are. The clerk of court then issues a summons, or serves process, upon the defendant to notify him that he is being sued and provide him with the nature of the claims. Once the defendant receives this notice, he has a time limit to file a response explaining his defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, though some courts impose no limit on certain jurisdictional challenges.
Usually the pleadings are drafted by a lawyer, but in many courts a person can file papers and represent themselves, which is called appearing pro se. Many courts have a pro se clerk to assist people without lawyers.
Pre-trial
The early stages of the lawsuit may involve discovery, which is the ordered exchange of evidence and statements between the parties based on what they each expect to argue during the actual trial. Discovery is meant to eliminate surprises and clarify what the lawsuit is about, and perhaps to make a party realize they should settle or drop the claim, all before wasting court resources. At this point the parties may also engage in pretrial motion filing in order to exclude or include particular legal or factual issues before trial, by blocking the other party from presenting a particular witness or arguing a particular legal theory.
At the close of discovery, the parties may pick a jury and then have a trial by jury. Or, the case may proceed as a bench trial heard only by the judge, if the parties waive a jury trial, or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.
Trial and Judgment
The lawsuit may then proceed similarly to a criminal trial, with each side presenting witnesses and submitting evidence, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to him to produce enough evidence to persuade the judge or jury that his claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.
There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely"--before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that he should change his decision or grant a new trial.
Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his complaint and end the whole matter, or the defendant may agree to a settlement, which involves a negotiated award followed also by the plaintiff withdrawing his complaint and the settlement entered into the court record.
Appeal
After a final decision has been made, either party or both may appeal from the judgment if they are unhappy with it (and their jurisdiction grants the ability). Even the prevailing party may appeal, if, for example, they wanted an even larger award than was granted. The appellate court (which may be structured as an intermediate appellate court and a higher supreme court) will then affirm the judgment, refuse to hear it (which effectively affirms), reverse, or vacate and remand, which involves sending the lawsuit back to the lower trial court to address an unresolved issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals ladder repeatedly before finally being resolved.
Enforcement
When there finally is a final judgment, the plaintiff will likely be barred under res judicata from trying to bring the same or similar claim again against that defendant, or from relitigating any of the issues, even under different legal claims or theories. This prevents a new trial of the same case with a different result, or if the plaintiff won, a repeat trial that merely multiplies the judgment against the defendant.
If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdiction. If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, though courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof." In most cases, nothing can be done to collect an award from a moneyless defendant.
Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been outlawed by statute, constitutional amendment or international human rights treaties in the vast majority of common law jurisdictions.
More legal terms:
A mensa et thoro
from bed and board. A divorce a mensa et thoro, is rather a separation of the parties by act of law, than a dissolution of the marriage. It may be granted for the causes of extreme cruelty or desertion of the wife by the husband. 2 Eccl. Rep. 208. This kind of divorce does not affect the legitimacy of children, nor authorize a second marriage. V. A vinculo matrimonii; Cruelty Divorce.
A vinculo matrimonii
from the bond of marriage. A marriage may be dissolved a vinculo, in many states, as in Pennsylvania, on the ground of canonical disabilities before marriage, as that one of the parties was legally married to a person who was then living; impotence, (q. v.,) and the like adultery cruelty and malicious desertion for two years or more. In New York a sentence of imprisonment for life is also a ground for a divorce a vinculo. When the marriage is dissolved a vinculo, the parties may marry again but when the cause is adultery, the guilty party cannot marry his or her paramour.
Ab initio
1. Latin for "from the beginning."
2. When an agreement is for legal reasons void ab initio, it is void for all purposes throughout the period of its purported existence, and not merely from the moment that it is declared to have been void by the Court.
3. When a man enters upon lands or into the house of another by authority of law, and afterwards abuses that authority, he becomes a trespasser ab initio. Bac. Ab. Trespass, B.; 8 Coke, 146 2 Bl. Rep. 1218 Clayt. 44. And if an officer neglects to remove goods attached within a reasonable time and continue in possession, his entry becomes a trespass ab initio. 2 Bl. Rep. 1218. See also as to other cases, 2 Stra. 717 1 H. Bl. 13 11 East, 395 2 Camp. 115 2 Johns. 191; 10 Johns. 253; ibid. 369.
4. but in case of an authority in fact, to enter, an abuse of such authority will not, in general, subject the party to an action of trespass, Lane, 90 ; Bae. Ab. Trespass, B ; 2 T. It. 166. See generally 1 Chit. PI. 146. 169. 180.
Aberemurder
obsolete: an apparent, plain, or downright murder. It was used to distinguish a willful murder from a chance-medley or manslaughter. Spelman; Cowell; Blount.
Abet
to encourage or set another on to commit a crime. This word is always taken in a bad sense. To abet another to commit a murder, is to command, procure, or counsel him to commit it. Old Nat. Brev 21; Col Litt. 475.
Abettor
one who encourages or incites, persuades or sets another on to commit a crime. Such a person is either a principal or, an accessory to the crime. When present, aiding, where a felony is committed, he is guilty as principal in the second degree ; when absent, "he is merely an accessory." 1. Russell, 21; 1 Leach 66; Foster 428. Source: Bouvier's Law Dictionary, Sixth Edition, Revised, 1856.
Abscond
to travel covertly out of the jurisdiction of the courts, or to conceal oneself in order to avoid their process.
Accessory
an accessory is one who knows of, and assists in, the commission of a crime, but is not present when the crime is committed. In this an accessory is different from an accomplice. A person may be an accessory either before or after the fact; that is, before or after the crime is actually committed. A person cannot be an accessory unless a crime is eventually committed.
Amicus curiae
a "friend of the court". When an important or difficult point is being argued in an adversarial system of law (such as the common law of England and the United States), but one part of the argument is inadequately represented (perhaps because a party is not interested in arguing it, or does not have the resources to argue it properly), the Court may appoint an Amicus curiae, to ensure that that part of the argument is sufficiently explored and is fully argued independently of the party upon whom the burden of that argument would ordinarily fall. One, who as a stander by, when a judge is doubtful or mistaken in a matter of law, may inform the court. 2 Inst. 178; 2 Vin. Abr. 475; and any one, as amicus curia, may make an application to the court in favor of an infant, though he be no relation. 1 Ves. Sen. 313. AMITA. A paternal aunt; the sister of one's father. Inst. 3, 6, 3.
Aquittal
to be found not guilty of a violation of law.Dawsey
Arguendo
"for purposes of argument", as in "assuming 'arguendo' that my opponent's contentions are correct." [In Latin, in this context, "arguendo" would mean "for the sake of arguing concerning another thing."]
The term is most often used in the following logical context:
P1 argues "X is a result of Y"
P2 responds "While you may or may not be correct that X is a result of Y, assuming 'arguendo,' that you are correct, you still fail to account for the existence of Z, which makes null your contention."
Conviction
to be found by a judge or jury to have violated a law. Note that a conviction does not necessarily mean the person has committed a crime. A person who receives a parking ticket or a traffic ticket only punishable by a fine and is found guilty stands convicted of the charge even though traffic and parking offenses are not crimes.
Crime
a violation of law which is an offense against the state and generally punishable by some form of penalty which could include prison or jail time. Crimes are defined as serious felonies or less serious misdemeanors. A violation of law which only has a monetary penalty is not a crime per se., but an infraction.
Change of venue
a change of venue is a legal term that means that a case before a court will be heard in another jurisdiction versus the one where the said crime took place. This is done when there is a reason to think that a defendant will not receive a fair trial, for whatever the reason.
Dismissal
termination of a legal proceeding prior to finding. A dismissal can be with or without prejudice.
Error coram nobis
a writ claiming previously unknown facts amounting to extraordinary error.
Estoppel
A principle of equity whereby a person is not allowed (is, therefore, estopped) from maintaining or relying upon the existence of a certain state of affairs. It is often said to be a shield not a sword, i.e., to afford a defence to a claim rather than the basis for a claim, but in certain cases the effect of an estoppel is to confer actionable legal rights. If, for example, a promise is made which is not legally enforceable because there has been no consideration provided for it, and it would be inequitable for the promise to be broken, the promisor may be estopped from reneging on the promise.
Ex parte
by or for one party without notification of nor representation on behalf of other parties. A variant is ex parte on notice where the other party has received informal or short notice, but not formal or full notice. When an application is made ex parte the other side is not heard, and there is therefore an obligation of full and frank disclosure on the part of the applicant in order to present a fair picture to the Court being asked to make any decision.
Felony
a serious crime, which is punishable by imprisonment of at least one year and one day, or by execution, or by fine or both fine and imprisonment or execution. It is distinguished from a misdemeanor as the maximum imprisonment for a misdemeanor is one year.
Grantee
A grantee is a person to whom something is granted. In a franchise agreement, for example, the party buying the franchise is the grantee.
Grantor
A grantor is a person who grants something (typically, rights or real property). In a franchise agreement, for example, the party selling the franchise is the grantor.
Implied Authority of Contract
The implied ability of a person to make a legally binding contract on the behalf of a business or organization, by way of uniform or interaction with the public on behalf of said business/organization.
Infraction
an essentially minor violation of law where the penalty upon conviction only consists of monetary forfeiture. A violation of law which could include imprisonment is a crime. It is distinguished from a misdemeanor or a felony in that the penalty for an infraction cannot include any imprisonment.
In loco parentis
a person who has custodial/parental responsibility and authority although not actually being a parent (literally: "in place of the parents"). Although this can be established by written contract it is often assumed in common situations; thus a sibling or babysitter may have limited rights to act in loco parentis until the legal custodial parties (parents etc.) can be contacted.
In medias res
Literally, "in the midst of things".
Injunction
any court order prohibiting some parties from specific actions and/or activities (for example, working for a competitor in breach of duty to an existing employer) on penalty of contempt of court. It is, in exceptional cases, possible to obtain a mandatory injunction, which is a court order compelling a certain course of action (for example, demolition of an illegal structure) on penalty of contempt of court.
Inter Alia
"among other things." Used in pleadings before a court or opinons of a court. ie. "The defendant claims, inter alia, that the plaintiff fails to establish . . ."
Jus tertii
Literally meaning "rights of a third [person]", is a defense in tort law against claims of possession such as detinue, or conversion. It is the acknowledgement of a third party who has better possession than the claimant seeking the action.
Misdemeanor
a less serious crime which is punishable by a fine, by imprisonment of one year or less, or by both. Some jurisdictions classify all violations of law which are less than felonies as misdemeanors, however generally a violation of law which is only punishable by a fine, and which cannot be punished by imprisonment, is considered an infraction (and not a crime), rather than a misdemeanor.
Non est factum
"it is not (his) deed". A plea that a person who has signed up to a deed or a contract lacked the necessary understanding or intent, and is therefore not bound by the document. A successful plea would void the contract.
Offense
any accusation of violation of law, whether it is a criminal violation (such as murder) or a non-criminal infraction (such as a parking ticket).
Prima facie
Latin for "At first sight." Self-evident; obvious. A prima facie case is where the plaintiff presents enough evidence to win outright barring any defenses or additional evidence presented by the defendant.
Prejudice
the ability of a party whose case has been dismissed to refile it with the court, usually after overcoming the issue that led to its dismissal. If a case is dismissed with prejudice it may not be refiled; if it is dismissed without prejudice, the plaintiff (civil) or prosecutor (criminal) is permitted to refile if they so wish.
Pro hac vice
"for this occasion", application by an out-of-state lawyer to represent his or her client. Since lawyers are licensed by each state independently they must ask for permission of the court to appear in matters before any other state courts. Permission is generally granted though the details can vary from one jurisdiction to another.
Rule Nisi
an order from a superior court to show cause. That is, the rule is absolute unless one can "show cause" to otherwise. Same as Decree nisi
Scenes à faire
(French) a doctrine in copyright law which excludes some elements from copyright protection on the basis of their being necessitated by external factors or being customary to a given genre.
Sine die
indefinitely; literally, "without a day". Use in relation to adjournments of the Court or of a particular case for an indefinite period.
Sine qua non
also meaning "But for", generally refers to the test used to establish causation in fact. If the result would not have occurred 'but for' the actions taken by the defendant, then there exist causation.
Sua Sponte
literally: "of its own accord" indicates that the court is addressing an issue that was not raised by any litigants; most often to defer to another jurisdiction regardless of the litigants' choice. (Also the motto of the U.S. Army Rangers)
Subpoena
Coming from the Latin for "under penalty" (sub poena), a subpoena is a court process used to cause a witness to appear and give testimony, commanding him or her to appear before the court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is formally called a subpoena ad testificandum, to differentiate it from a subpoena duces tecum, which refers to documents.
On proof of service of a subpoena upon the witness, and that he is material, a citation may be issued against him or her for contempt, or (conceivably) a bench warrant for his or her arrest may be issued, if he or she neglects to attend as commanded. The equivalent command to a defendant is a summons.
Subpoena Duces Tecum
a court order specifying items that a witness or other party is to bring (duces) in hand (tecum) or suffer penalty (sub poena)
A civil wrong (as opposed to a criminal wrong), which may be either intentional or accidental. If someone is driving and hits an unoccupied parked car, they commit a tort in that they have caused a wrong to another party which does not rise to the level of a crime. If they fail to stop at the scene of the accident, they also commit a crime, which is a criminal wrong in addition to, and separate from the tort.
Tortfeasor
a person who commits a tort.
Under Seal
A procedure allowing sensitive or confidential information to be filed with a court without becoming a matter of public record. The court generally must give permission for the material to remain under seal.
A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. In common law and civil law states, the courts are the central means for dispute resolution, and it is generally understood that all persons have a right to bring their claims before a court. Similarly, those accused of a crime have the right to present their defense before a court.
Trial and appellate courts
Each state establishes the court system for the territory under its control. This system allocates work to the courts or authorized individuals by granting both civil and criminal jurisdiction (in the United States, this is termed subject-matter jurisdiction). The grant of power to each category of court or individual may stem from a provision of a written constitution or from an enabling statute. In English law, jurisdiction may be inherent, deriving from the common law origin of the particular court. For this purpose, courts may be classified as trial courts (sometimes termed "courts of first instance") and appellate courts. Some trial courts may function with a judge and a jury: juries make findings of fact under the direction of the judge who makes findings of law and, in combination, this represents the judgment of the court. In other trial courts, decisions of both fact and law are made by the judge or judges. Juries are less common in court systems outside the Anglo-American common law tradition.
In a common law system, appellate courts may be arranged in a hierarchy and their function is to review the decisions of trial courts (and of lower appellate courts) and, generally, they only address questions of law, i.e. whether the lower courts interpreted and applied the law correctly, or procedure. These hearings do not usually involve considering factual matters unless new evidence has come to light. Such factual evidence as is admitted will only be considered for the purposes of deciding whether the case should be remitted to a first instance court for a retrial unless, in criminal proceedings, it is so clear that there has been a miscarriage of justice that the conviction can be quashed.
Personal jurisdiction
In the United States, a court must have personal jurisdiction over a defendant to hear a case brought by a plaintiff against that defendant. There are three kinds of personal jurisdiction: in personam jurisdiction, in rem jurisdiction, and quasi in rem jurisdiction. A detailed discussion of personal jurisdiction is beyond the scope of this article; however, personal jurisdiction (in the United States) generally refers to the legal sufficiency of the connection between the defendant and the forum (the U.S. state) in which the court is located. See, for example, Pennoyer v. Neff. See also Minimum contacts and International Shoe v. Washington.
Civil law courts and common law courts
The two major models for courts are the civil law courts and the common law courts. Civil law courts are based upon the judicial system in France, while the common law courts are based on the judicial system in Great Britain. In most civil law jurisdictions, courts function under an inquisitorial system. In the common law system, most courts follow the adversarial system. Procedural law governs the rules by which courts operate: civil procedure for private disputes (for example); and criminal procedure for violation of the criminal law.
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