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#14 Review the Restatement of Torts § 519 and 520 as follows: § 519. GENERAL PRINCIPLE (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. § 520. ABNORMALLY DANGEROUS ACTIVITIES In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Then analyze the following hypotheticals: 1. Miller Thurber owns a bulldog, which he keeps chained in his backyard. The dog often barked and growled at anyone passing by the house on the sidewalk. One morning, Josie Taylor, an employee of the electric company visited the Thurber property to read the meter located in the backyard. Josie had read the meter previously and knew about the dog. She peeked into the yard and did not see the dog so she entered the backyard. The chain, which the dog was usually attached, was on the ground and the dog was nowhere to be seen. As she entered the back yard an approached the meter the dog appeared out of nowhere and attacked her. She sustained serious injuries and was hospitalized as a result of the severe bites. In this case please determine if absolute liability applies and if the tortfeasor will be strictly liable to the injured party. Also please discuss relevant defenses and if there are any defenses how would they apply to the case. 2. hypothetical – STRICT LIABILITY Heather Muffin works at the municipal zoo. She feeds and cleans the cages for the various species of monkeys on exhibition. One day, Heather received a telephone call from “Spider” Tomey, exhibits supervisor, who instructed her to report to the exotic bird building to substitute for another employee who was ill. Heather had never worked with these birds before and was unfamiliar with their habits, although, she had received feeding and watering instructions from Spider. As she was cleaning one of the walk-in cages, a toucan landed on the back of her neck, scratching and biting at her ears. The scratches required stitches. There were no municipal ordinances discussing the zoo or its operation, apart from the enabling act that established the zoo and its supervision by the city’s department of parks and recreation. Discuss liability, and the defenses of consent, assumption of the risk, contributory and comparative negligence. 3. Olaf Nurdoff owns a gas stations. While a tanker truck was filling his underground fuel tanks, Olas was using a welding torch inside his garage area to repair a customer’s car. He inadvertently knocked over the torch, still lit, which fell into a puddle of gasoline from the tanker. The puddle ignited and burned across the ground to the tanker pipe connected to the underground tanks. Both the tanker truck and the fuel in the underground tanks then ignited and exploded. Several patrons and their vehicles were severely injured. In this case please determine if absolute liability applies and if the tortfeasor will be strictly liable to the injured party. Also please discuss relevant defenses and if there are any defenses how would they apply to the case. Also show how Restatement of Torts §520 applies to this case. 4. The Balladonna Pharmaceutical Company manufactures medicines. It uses certain chemical solutions that turn bad and must be destroyed. These solutions are kept in steel barrels in the firm’s back lot, awaiting pick up from a local waste disposal company. Bud Marvelle works for the trash company. He had never collected trash from Belladonna before, as he normally rode the residential trash routes. Bud’s supervisor failed to instruct him to take a special sealed tank truck to get Belladonna’s chemicals. Instead, Bud drove an open-top trash truck used to haul dry garbage. Bud tossed the barrels into the truck, and several of them ruptured and leaked. As Bud drove down the highway to the dump. sludge spilled out of the back of the truck onto an automobile driven by Madison Ventura. Madison stopped and touched the sludge caked across the front of his car. it made his hands burn. Frightened Madison drove to a local hospital emergency room. His skin had absorbed much of the chemical waste, and he became severely ill and had to be hospitalized for several weeks. In this case please determine if absolute liability applies and if the tortfeasor will be strictly liable to the injured party. Also please discuss relevant defenses and if there are any defenses how would they apply to the case. #15 Product Liability Hypotheticals Use Restatement of Torts 402 (a), and analyze the following hypotheticals, post your analysis to each hypothetical below, using a separate set of paragraphs, and number for each hypothetical. There are Seven (7) hypotheticals. Good luck. Prof. J. Section 402A, “Special Liability of Seller of Product for Physical Harm to User or Consumer,” provides: 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Re: HYPOTHETICALS – PRODUCT LIABILITY 1. WedgeCorp manufactures golf clubs. The clubs have rubberized grips that golfers hold onto to swing them. Waldo Maillor bought his wife a set of clubs for her birthday. Cindy Maillor is an avid golfer and uses the clubs three times weekly at the local country club. When WedgeCorp manufactured the clubs, they used an improperly mixed glue that did not tightly bond the grips to the end of the clubs. While Cindy was swinging a five iron, the grip came loose and the club sailed through the air, striking Cindy’s golfing partner, Betty Payless, in the forehead. 2. Better Bovine, Inc. (BB) sells dairy cattle to farmers. These livestock are raised on one of BB’s pasturing farms outside of town. To control weeds, BB’s employees sprayed pasture land with herbicides. The cattle ate this grass and absorbed the chemicals into their systems. These chemicals reduced the cows’ milk production. Several farmers who purchased BB cows suffered substantial economic losses when the animals’ milk productivity plummeted. 3. Whopper Toys Corporation manufactures “Mr. Killjoy,” a combat doll. Mr. Killjoy comes equipped with sharp plastic swords that you can fit into his hands for mock battles. Whopper indicated on its packaging that his toy was not suitable for children under the age of six years. This was the only warning printed on the package. Franco Delgado bought a Mr. Killjoy figure for his four-year-old son, Francisco. While playing with Charlotte, a three-year-old neighbor girl, Francisco had the doll “attack” her. Its sword stabbed Charlotte through her nose, leaving a permanent scar. 4. Omar Muhammad is an accountant who lives in an apartment next to Joyce Madison. Omar sold his electric stove to Joyce for $200. Omar had never kept the electric heating elements on top of the stove particularly clean. In fact, they; were caked with grease and dirt. The first time Joyce turned on the stove, the heating elements caught fire and set Joyce’s long hair ablaze. 5. The Steak Out restaurant has a reputation for excellent steaks. One day it received a meat shipment from the Midwestern Meat Packing Company, a national meat distributor. When the shipment left Midwestern, it was shipped in a refrigerated truck. However, en route to the Steak Out, the truck’s refrigeration system broke down, but the driver never noticed. The meat spoiled. When the Steak Out’s employees unloaded the truck, they did not notice that the meat smelled bad. In fact, the meat did not smell much, if at all. Nevertheless, customers served from this shipment of beef became seriously ill from food poisoning. 6. Peter Breezeway bought a large screwdriver, made by the Hand Tool Manufacturing Company, from his local hardware store. Unknown to anyone, the screwdriver had a microscopic crack in its shaft. If excessive pressure were exerted on the screwdriver, it would snap. Peter used the screwdriver to pry open sealed crates that he received at work. One day, while prying open a crate, the screwdriver broke, severely cutting the tendons in Peter’s left hand. 7. Bartholomew Bendon works for the United States Department of Defense. One day he noticed that his paper-shredding machine made a loud grinding noise while operating. He opened the maintenance door, but could see nothing wrong with the parts inside. Bart continued using the machine, despite the horrible noise. Several co-workers complained to him about it. The grinding occurred because the machine was out of lubricating oil, which, according to the machine’s instruction manual, should have been checked at least monthly. No one had checked the oil level since the machine was purchased over a year ago. While Bart was using the machine, its gears froze up, and broke loose the paper-shredding blades. These lodged in Bart’s thighs, cutting him deeply. #16 Defamation Tort Teasers Review the Torts Outline on Defamation (Links to an external site.) Then answer the following hypotheticals: 1. Time Magazine publishes a report that Plaintiff and her husband, both of whom are wealthy socialites, were granted a divorce based on adultery, when in fact the divorce was granted on other grounds. The court’s final judgment reads (in part): According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud’s hair curl. Other testimony, in plaintiff’s behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida … In the present case, it is abundantly clear from the evidence of marital discord, that neither of the parties has shown the least susceptibility to domestication Times’ article Divorced. By Russell A. Firestone, Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach schoolteacher, on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Florida. The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, “to make Dr. Freud’s hair curl.” Time, Inc. v. Firestone – click here (Links to an external site.) 424 U.S. 488 (1976)* Discuss the elements of tort and liability in this case. 2. The manager of Defendant’s motel sends a certified letter to Plaintiff, who had been a guest at the motel. In the letter he alleges that Plaintiff left without making payment and “accidentally packed” several items of motel property. The letter is received by Plaintiff’s maid and read by Plaintiff’s wife. Defendant is unaware that the Plaintiff is married. Barnes v. Clayton House Motel – click here (Links to an external site.), 435 S.W.2d 616 (TX 1968) Discuss the elements of tort and liability in this case. 3. Defendants author a book in which they claim that the models at Neiman-Marcus are “call girls” and that most of the salesmen are “fairies.” Fifteen of the total of twenty-five salesmen sue on their own behalf and on the behalf of others, and all nine models sue for defamation. Neiman-Marcus v. Lait – click here (Links to an external site.), 13 F.R.D. 311 (S.D.N.Y. 1952)Discuss the elements of tort and liability in this case. 4. What might the defendants want to argue in the following case? Defendants file a letter with the grievance committee of the Association of the Bar of the City of New York alleging that Plaintiff has been fraudulent and dishonest in his practice as an attorney. Plaintiff claims that such allegations are defamatory. Wiener v. Weintraub, 239 N.E.2d 540 (N.Y. 1968) New York Court of Appeals Reports WIENER v. WEINTRAUB – click here (Links to an external site.), 22 N.Y.2d 330 (1968) Decided June 14, 1968 In this action for libel, the plaintiff, a member of the New York Bar, alleges in his complaint that the defendants falsely and maliciously charged him, in a letter addressed to the Grievance Committee of the Association of the Bar of the City of New York, with dishonesty and fraud. The defendants moved, pursuant to CPLR 3211 N.Y.C.P.L.R. (subd. [a]), to dismiss the complaint on the ground that it fails to state a cause of action in that the letter to the Grievance Committee was absolutely privileged. The court at Special Term granted the motion, dismissing the complaint. The Appellate Division unanimously affirmed the resulting order and granted leave to appeal. Discuss the elements of tort and liability in this case. 5. A high school wrestling coach testifies at an investigatory hearing of the Ohio High School Athletic Association after his team is involved in an altercation at a wrestling match. He testifies again during a suit filed by several parents; the county court overturns a ruling in favor of the Athletic Association. The day after the court’s decision a local reporter writes a column implying that the coach committed perjury. The column” heading was “Maple beat the law with the “big lie” and contained the following relevant passages: (1) – A lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8. A lesson which, sadly, in view of the events of the past year, is well they learned early. It is simply this: If you get in a jam, lie your way out. If you’re successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened. The teachers responsible were mainly Head Maple Wrestling Coach, Mike Milkovich, and former superintendent of schools H. Donald Scott. …and … (2) – Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth….. But they got away with it. Is that the kind of lesson we want our young people learning from their high school administrators and coaches? …..I think not. Is the wrestling coach a public figure? Does the article constitute opinion that is protected, or does the coach have an actionable claim for defamation? Milkovich v. Lorain Journal Co – click here (Links to an external site.), 497 U.S. 1 6. A man sues his ex-wife for defamation because of her claims that he is a homosexual and that Plaintiff is his lover. The ex-wife asks Defendant, a deputy sheriff, to secure a hair sample from Plaintiff while he is hospitalized. Defendant pays an orderly, who obtains combings from Plaintiff while he is hospitalized. Defendant pays an orderly, who obtains combings from Plaintiff” hairbrush and a discarded adhesive bandage. Plaintiff does not learn of this intrusion and until after it occurs. What tort should Plaintiff allege? Froelich v. Werbin – click here (Links to an external site.), 548 P.2d 482 (KS 1976) 7. Plaintiff, a manufacturer of loudspeaker systems and other audio equipment, claims that Defendant consumer product-testing organization published false statements in its review of Plaintiff’s loudspeakers. What claim might Plaintiff file in addition to a defamation claim? Bose Corp. v. Consumers Union – click here (Links to an external site.), 508 F. Supp. 1249 (C.D. MA 1981) #17 Law 12 Tort Teasers – Vicarious Liability Cases – Analyze each case below, and post your analysis of each one below (please post the name of the case you are analyzing) 1. At a Christmas office party defendant (an employee) becomes drunk and while driving home negligently causes the Plaintiff injury. What would you ned to know to determine if Defendant was acting within the scope of his employment.Harris v. Trojan Fireworks Co (Links to an external site.). 120 Cal. App. 3d 157 (1981) 2. Defendant collides with a car driven by Plaintiff as a result of brake failure. Defendant had her brakes overhauled by a mechanic three months prior to the accident. Defendant claim’s that the mechanic’s negligent repair was the cause of the accident. Should the Defendant be held liable? Maloney v Rath (Links to an external site.) , 445 P. 2 513 (Cal. 1968). 3. Employee, entrusted with a vehicle by Employer, suffers an epileptic seizure and causes an accident that results in the death of one person. Employer hired Employee six weeks before the accident. Three weeks before the accident Employee suffered dizzy spells and had minor accidents on three separate occasions, two of which were brought the the attention of Employer. Employer arragned to have Employee examined by a physician, who found nothing wrong with Employee. Should Employer be held vicariously liable in a wrongful death action? Syah v. Johnson (Links to an external site.), 55 Cal Rptr. 74 (Ct. App. 1966). 4. The owner of a vehicle brings his car to a car wash. It is attached to a tow line and towed without its operator through the car wash. When it emerges front he wash it rolls down an incline and strikes Plaintiff’s automobile. Is the car wash liable for the damages to Plaintiff’s car? Assume that the motor vehicle code of that state provides that the negligence of one who uses or operates a vehicle with the owner’s express or implied permission is imputed to the owner of the vehicle. In accordance with this statute, should the vehicle owner be held liable for the property damage to Plaintiff’s vehicle? Allcity Insurance Co. v. Old Greenwich Delicatessen (Links to an external site.), 349 N.Y.S. 2d 240 (Civ. Ct. 1973). 5. Defendant Driver collides with a school bus while acting as a chauffeur for the owner of the vehicle he is driving. Defendant is driving with the owner’s premission for the purpose of keeping the car running in good shape. If Defendant was contributorily negligent can the owner sue the driver and the owner of the school bus for damages sustained by his vehicle? Can the two passengers in the vehicle at the time of the accident recover for their injuries? Can the driver’s wife recover for her injuries (assume this is a community property state) ? Muhammad v. United States, (Links to an external site.) 366 F. 2d 298 (pth Cir), cert. denied 356 U.S. 959 (1966)