Torts Final Outline

Torts II Outline Thomas Jefferson School of Law Professor Bisom-Rapp-Spring 2012

6/22/2012 8:42:00 AM

STRICT LIABILITY
When risk is brought unilaterally/unreciprocated risk 2 areas of Strict Liability (S/L) 1). Animals 2). Abnormally Dangerous Activities Animals Trespassing livestock Fencing out Fencing in Strict liability o No, strict liability where animals are on highway and stray onto adjoining parcel of land (nor if herd of animals like cows stray out of fenced parcel) So tripping over snake is not strict liability as it would have to be strangulation or bite etc No liability without fault

Dangerous Animals Wild: Hold keepers of wild animals strictly liable (although harm must be result of the specific danger said wild animal presents). Domestic: Must prove D had scienter (scienter means owner knows or should have known dangers an animal presents). o Domestic means by custom animal provides service/benefit to mankind Abnormally Dangerous Activities Rylands v. Fletcher o Exchequer court (trial court) ruled for D o Exchequer chamber (intermediate court) ruled for P

o House of Lords ruled for P *Not responsible for first restatement mentioned in supplement Ryland v Fletcher (cont) Blackburn- If D keeps something on land likely to do mischief if it escapes, and it escapes, D is liable even if not at fault Cairns: Where non-natural use of land causes harm, D is strictly liable (like minx in ryland case) Rest. of Torts 2nd Factors Considered for Strict Tort Liability for activities (Judges assess) Existence of a high degree of risk or harm Likelihood that the harm will be great Inability to eliminate the risk by exercise of reasonable care (most important) Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on extent to which its value to the community is outweighed by its dangerous attributes Restatement of Torts 3rd An activity is abnormally dangerous if: The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors The activity is not one of common usage 4 Step approach to Strict Liability Problems Determine if facts within a class of SL animals or activities Determine if the harm suffered was within the inherent risk Assess proximate cause Defenses

Defenses to strict Liability Claims Contributory negligence is NOT a defense to SL claims but the following are defenses:

Comparative fault: will reduce recovery Assumption of the Risk: will bar recovery if risk is knowingly and voluntarily encountered Lack of Scienter Privilege (aka legal sanction)

VICARIOUS LIABILITY
Respondent Superior: Employer/employee Relationship Is the tortfeasor an employee or an independent contractor? If tortfeasor is an employee, is she/he acting within the scope of employment? If tortfeasor is an independent contractor, do any of the exceptions to nonliability apply? Employee v Independent Contractor Rule: Employer must have the right to control the physical details of the work done Factors 1. Extent to which master controls details of work 2. Actor employed in distinct occupation or business 3. Customs of occupation 4. Who supplies place and tools of work 5. Length of time employment is to last 6. Method of payment 7. Is work done for ER part of ERs regular business 8. The belief of the parties about their relationship Independent Contractor Vicarious Liability No vicarious liability for employer who hires IC UNLESS/EXCEPTIONS Torts by IC that do hold employer liable for Vicarious Liability

1). Harm caused by negligence of carefully selected IC ( non-delegable duty of care) Repairing dangerous instrumentalities Precautions required by statute Inherently dangerous activities 2). Harm caused by careful IC engaging in abnormally dangerous activity 3). Illegal activities Joint Enterprise and Vicarious Liability Rest. of Torts 2d sec 491 provides 4 factors that establish joint enterprise An agreement among members of the group A common purpose to be carried out A community of pecuniary (money making) interest Equal right among the parties to control direction of the enterprise Bailments Where owner is present Some jurisdictions assume right of control so there is VL Other jurix require proof of agency relationship to impose VL Where owner is not present Family purpose/car doctrine embraced by the jurisdictions common law (Malchose case) OR Automobile consent statute adopted by the legislature

PRODUCTS LIABILITY
1) Negligence Duty owed to foreseeable plaintiff Breach- looking for unreasonable conduct/carelessness in design, manufacturing, packaging, warning, shipping, testing, etc Causation- factual and proximate Damages- physical injury and property damage NOT pure economic loss Defenses: contributory negligence, comparative fault, assumption of risk

2) Warranties Express warranty Is the plaintiff proper (some jurix limit warranty protection to household while most extend to any natural person) Is defendant proper (most jurix extend expresse warranty liability to all commercial sellers) ELEMENTS: An assertion of fact -(material representation about products composition, durability, performance, safety) Basis of the bargain - (statement must precede or accompany the sale) presumed by UCC buyers reliance-Did buyer justifiably rely of assertion of facts Causation- failure of product to have promised quality caused the harm Damages personal injury, property damage, pure economic loss

Express Warranty and Implied Warranty Privity Issues Protected Ps- (horizontal privity issues) UCC 2-318 provides 3 alternatives indicating who can sue on the warranty and what kind of damages he can get Defendants liable (vertical privity issues) UCC limits liability to merchants but many jurix expand liability to all sellers. Defenses Lack of reasonable notification Within reasonable time of discovering breach, P must notify seller or suit barred Limitations of liability by D- must be reasonably consistent with the warranty, not unconscionable (D may NOT disclaim an express warranty) Comparative negligence Assumption of risk

Implied Warranties IWs for Merchantability

A promise that the product is fit for the ordinary purposes for which it is used Elements Merchants Who sell goods not fit for ordinary purposes (breach) Are liable to protected Ps If breach of implied warranty causes Damages (per. Injury, prop damage, pure economic loss) Implied Warranty of Fitness for Particular Use All Sellers Who sell goods not fit for a purchasers particular use Where the particular use is communicated to D and purchaser relies on Ds expertise (reliance) The breach causes Ps damages (per injury, prop damage, pure eco loss)

Defenses (for implied warranties) Lack of reasonable notification Within a reasonable time of discovering breach, P must notify seller or suit will be barred Limitations of liability by D- must be reasonably consistent with the warranty, no unconscionable (D may not disclaim express warranty) Disclaimers of Liability sell as is Comparative negligence Assumption of risk

Restatement 2d torts 402A 1. Commercial seller (merchant) who sells a product 2. Defective condition that is unreasonably dangerous A) Manufacturing defects B) Design defects C) Warning and instruction defects 3. Physical injury and property damage to user/consumer 4. Where product reaches user/consumer without substantial change

2. Design Defects Defective Condition that is Unreasonably dangerous Manufacturing Defects of Product Liability in Tort (Rest. 3d sec 2) Contains a manufacturing defect when: o the product departs from its intended design even though all possible care was exercised o Is defective in design when the foreseeable risks of harmcould have been reduced or avoided by the adoption of a reasonable alternative designand the omission.renders the product not reasonably safe o Is defective because of inadequate warnings or instructions when the foreseeable risks of harmcould have been reduced or avoided by the provision of reasonable warnings or instructions. Manufacturing defects (main rule) o Rule: A product has a manufacturing defect when it departs from its intended design and the departure makes the product more dangerous o Defective condition that is unreasonably dangerous) o Applying the rule: Simply compare the products design against the allegedly non-conforming unit of the product which injured P. 2. Design Defects (cont) of S/L in Product Liability4 Rules 1. Hindsight risk/utility 2. Ordinary risk/utility 3. Consumer expectations 4. Hybrid approach (CA approach) Design defect Rule 1 Dean Keetons approach o Rule: 1. Hindsight risk/utility: Impute knowledge of risks and useful aspects of product to D using knowledge available

at time of trial (instead of knowledge available at the time the product was marketed) Reasons Product Liab is Strict Liability o 1. In design defect cases, knowledge of product risks is often imputed to D even when D didnt have actual knowledge o 2. Some courts limit or will not apply the defense of contributory negligence in products cases so they want to distinguish b/w products cases and negligence o 3. Some courts feel negligence is too forgiving of small manufacturers o 4. The liability of non-manufacturing sellers is strict! Design defect Rule 2 Dean Wades approach o Risk utility: Balance 7 factors if the risk of the product as designed is greater than the utility of the product as designed, the product has an unreasonably dangerous design defect o Knowledge base is time the product is marketed 7 Risk-utility Factors (same factors for hindsight & ordinary utility tests) 1. Usefulness and desirability of product 2. Safety aspects of the product (likelihood and severity of injury) 3. Availability of safer substitute product 4. Ability to improve products safety without impairing its usefulness or making it too expensive 5. Users ability to avoid risk by being careful when using product 6. Awareness of danger due to general knowledge or warnings 7. Feasibility of D spreading loss, getting insurance Design Defect Rule 3-Consumer Expectations o Consumer expectations is product dangerous beyond that which ordinary consumer would consider Design Defect Rule 4- Hybrid approach

o Hybrid Approach o Product has design defect if: o 1. P shows product failed to perform as safely as an ordinary consumer would expect o 2. P shows products design proximately caused injury and D fails to prove benefits outweigh risk Warning defects Rule: P must show that manufacturer knew or should have known of the risks associated with product. Rule for other Ds: P must show that retailer knew or had reason to know of the risks. Considered a lesser standard. Product Liability in Tort Warning defects some sub-rules 1. State of the art relevant to know-ability 2. Obvious hazards no need to warn 3. Sophisticated users no need to warn 4. Learned Intermediary rule 5. Post-sale duty to warn

3. Damages-Physical injury and property damage to user/consumer Pure economic loss not available Physical injury damages available Property damages available (harm to product itself not always considered property damage) Economic loss that flows from physical injury or property damages is available Rest 3d Sec. 21 Damages Harm to person or property includes economic loss if such loss is caused by harm to: Ps person The person of another when the harm interferes with Ps interest that is protected by tor law The Ps property (missed some of slide here)

4. Where product reaches user/consumer without substantial change The defect indentified in the second element must be the proximate cause of Ps injury The defect must have existed when the product left the Ds control (ex in Rix case) Defenses to 402A claims (S/L Produc liability) Comparative fault is defense in most jurisdictions (reduces recovery) Assumption of risk may bar suit Unforeseeable misuse may bar suit

DEFAMATION
(7 elements)- For Exam First Categorize type of plaintiff Defamatory Statement About the plaintiff False Statement Fact v. Opinion Published Damages State of Mind

1. Defamatory Statement- statement is one that diminished the respect, good will, confidence or esteem in which the P is held OR excites adverse or unpleasant feelings about the P. (Ex. Being characterized as a liar, especially with respect to ones engagement in sexual affairs, would satisfy this standard) 2. About the Plaintiff-A plaintiff must demonstrate that a reasonable person would understand defamatory statement was referring to that plaintiff. If the defamatory statement does not refer explicitly to the plaintiff,

the plaintiff would likely need to plead colloquium, extrinsic evidence that connects the plaintiff to the statement. Inducement- Where statement is not defamatory on its face, P must plead extrinsic facts-background info called the inducement. o Ex. P was Mormon and statement said she drank beer (wouldnt be defamatory for normal person but could be to Mormon) Innuendo- where the statement is not defamatory on its face, P must explain why the statement, along with the inducement, injures Ps reputation. This is innuendo Rule for Groups: P must establish that a reasonable person would understand the defamatory statement referred to the P o Where groups is large, none can sue o Where group is small, each member can sue o Problems occur when statement refers to some of group but not all Colloquium: Where statement does not explicitly refer to P, P must plead extrinsic facts, known as colloquium, to demonstrate that a reasonable person would understand the statement as referring to P 3. False Statement Rule: statement must be substantially untrue Application: Where details between truth and the statement differ, ask whether the essential sting or thrust of the defamatory communication is the same as what actually happened, Where there is a difference between the statement and what actually happened, falsity is established. 4. Fact v. Opinion- example: calling someone a liar could be construed as a statement of opinion. Yet, the Supreme Court in Milkovich held statements of opinion actionable to the extent they imply an assertion of objective fact.

A reasonable argument could be made if statement is based on implied knowledge, which might be deemed actionable Opinion is actionable in a defamation suit if: The opinion implies false, defamatory facts; e.g. I think Bob is an alcoholic is a statement that implies known, false, reputation- harming facts about me. The speaker offers an opinion as true when it is not an opinion actually held by the speaker. In other words, it is a false opinion; e.g. I thought the food in Restaurant X was disgusting but the speaker loved the food! Opinion is not absolutely protected by 1st Amendment Opinion is actionable- when opion implies objective facts And when its someone elses opinion. 5. Publication Rule- Statement must be conveyed and understood by at least one person other than the P or D/ communicated to a third person who reads and understands it. Sub-Rule: Primary Publisher: Each entity taking part in making the initial message is charged as a primary publisher (author, editor, newspaper, tv station) o Must take place via an intentional or negligent act. Basically, D must intend for 3rd person to read/hear it OR be negligent in allowing 3rd person to hear/read Sub Rule 2: Secondary Publisher: Those who transmit the message more passively are secondary publishers and are liable only if they know or should know of defamatory matter (bookstores, libraries, magazine stand) o Those who transmit the message more passively are secondary publishers and are liable only if they know or should know of defamatory matter (bookstores, libraries, magazine stand). Communications Decency Act of 1996 230(c)(1)- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any info provided by another information content provider.

Act grants immunity to online companies when info is provided by non-company/another another party (ex. match.com vulgar German guy posting lady is horny on her profile)

6. Damages General Damages: Presumed by law and need not be proven. Provides compensation for general injury to reputation (ex. Humiliation, wounded feelings, loss of friends). Special Damages: Must be proven. Covers pecuniary loss as a result of defamation (ex. Lost job, loss of prospective gift, destruction of advantageous business relationship Types of Damages 1. Libel per se (defamatory on its face/obvious like Bob packs fudge) and slander per se (crime of moral turpitude, in business/socially; unchastely- slander that does not require special damages be proven) could render damages a (case would be one for libel if written; communicated by sight (i.e., newspaper 2. Slander- requires special damages (i.e., wounded feelings, humiliation) be proven to get damages (like spoken word/not written) Gen damages presumed after special damages are proven 3. Libel per quod (not defamatory on its face) courts are split on whether special damages need be proven. General damages presumed by 2nd restatement

Private Figures Damages (Gertz) When no showing of actual malice a private P defamed on a matter of public concern may NOT recover presumed or punitive damages. Such a P may only collect for actual injury Actual Injury: Proven damages not limited to out-of-pocket loss, and covering impairment of reputation, humiliation, mental anguish. If not matter of public concern though, no actual malice need be proven to get damages-Dun Bradstreet v Greenmoss Builders

Matter of Public Concern: Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community. Snyder v. Phelps 7. State of Mind Rule: (for public officials, public figures, candidates for public office) False statement made with actual malice; that is, with knowledge that the statement was false OR acted with reckless disregard as to its truth or falsity. o Reckless Disregard- D subjectively entertained serious, serious, doubts about the truth of a statement o The test is subjective and requires circumstantial evidence (that is clear and convincing-between kinda sure and beyond reasonable doubt) to show D knew his statement was bullsh$t. Carelessness isnt enough has to be RECKLESS Sub Rule: (Actual Malice) Deliberate alteration is not equivalent to actual malice unless the alteration results in a material change in the meaning conveyed by the quote (NY magazine case- when reporter publishes story of interview and put unquoted statements in quotes. P used tape recording to show none of the quotes were taped and the court said those quotes materially altered what P actually said). Determining who qualifies as Public official Whether P is government employee who has or appears to have substantial responsibility for or control over government affairs. If yes, P is public official. All purpose public figures: people who have reached pervasive fame like Tiger Woods, Brad Pitt, Oprah, and even Snookie and Kim Kardashian. Limited public officials (3 factor test) o Must be a public controversy/issue publicly debated that is serious o Typically P must thrust himself into the controversy or public issue (aka assumption of risk)

o The defamatory communication must concern the issues related to the public issue they are/were involved in Public P defamed on matter of public concern must prove actual malice for state of mind Private P defamed on matter of public concern must prove at least negligence for state of mind Falsity Rule: the statement must be substantially untrue Private plaintiff must prove falsity at least where a private P is defamed on a matter of public concern (P must prove falsity too). Private P concerning matter of Private concern Supreme Court has not ruled yet. Almost all states require negligence be proven. Private on Private still open issue US Constitution 1st Amendment relation to Defamation Rule (from 1st Amendment): Congress shall make no law abridging the freedom of speech, or of the press. Sub-rule: Through the operation of the 14th Amendment, the First Amendment binds not only the federal government but also the states Sub-rule 2: 1st Amendment claims require state action; private actors not subject to restrictions. For States: So long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher.of defamatory falsehood injurious to a private individual. Timeline info of Defamation 1600s- no fault for defamatory statements 1700s- only if it was done with malice/out of spite 1900s- malice as matter of law (implied the hateful intent) malice in fact(proved by defeating defense)

1964- Back to no fault (no need to prove carelessness or intent) Defamation defenses Two important defenses: 1. Consent: An absolute defense so long as it is not exceeded. 2. Truth: Even though public Ps and private Ps defamed on a matter of public concern must prove falsity, substantial truth, if proven by the D, is an absolute defense. Absolute Privileges Participation in government processes o Judicial proceedings o Legislative proceedings o Executive proceedings Compelled broadcasts TV and radio stations protected where electoral equal access laws mandate broadcast of a candidates response Communications between spouses Third party cannot sue where publication is b/w spouses

Conditional/Qualified Privileges 3 Types 1. The interest privileges 2. Reports of public proceedings 3. The privilege of fair comment The Interest Privileges 1. Protection of publishers own interests 2. Protection of a third partys interests 3. Protection of common interests 4. Public interest Ways of losing the interest privileges o 1. Where D has no reasonable basis for believing the statement is true (P proves D acted with reckless disregard due to Const. standards); o 2. Where Ds statement was not solicited;

o o o o

3. 4. 5. 6.

Where Where Where Where

Ds statement was not made to a proper person; D excessively published the statement; D used inflammatory words; D had improper state of mind

Reports of public proceedings There is a qualified/conditional privilege to report on public proceedings, public records, official acts but the report must be verbatim OR an accurate and fair (disinterested) summary. To defeat the privilege, P must show fault by D in failing to make the report accurate and fair. Privilege of fair comment D may offer criticism on matters of public concern, including the activities of public officials/figures and on subjects scientific, artistic, literary, and dramatic. The criticism must be comment or opinion not a misstatement of fact. It must be fair and based on true facts. Interpret the privilege by referencing Milkovich

MISREPRESENTATION
Three causes of action (intentional, negligent, strict liability) Five Elements 1) Ds misrepresentation of a material fact 2) State of mind (various among 3 causes of action) 3) Ds intent to induce Ps reliance (varies among cas) 4) Ps justifiable reliance on the misrepresentation 5) Damages Sub-Rules Material: 2 ways to prove Info is material if RPP would attach importance to it when making a decision to enter transaction

Info is material if D knows or should know this particular P considers the info to be important Fact: The info must be a fact not opinion Misrepresentation: Words or actions that create a false impression, cover up the truth, or remove an opportunity to discover the truth (active, failure to disclose, half truths). 1) Misrep of Material fact (varies by cause of action) 3 Ways Misrepresentation Occurs (of Material Fact) Active Misrepresentation- Can be oral written, or based on specific actions Failure to disclose when duty to disclose Old Common law: caveat emptor- no duty Exception- special relationship between P and D Modern Trend: duty to disclose defects that seriously affect land use and which buyer could not reasonably discover Half-Truths Partial disclosure that is misleading is a misrepresentation Old Common Law- no duty to speak but once D does, must make full, fair disclosure 2) State of mind (varies by cause of action) Intentional Misrepresentation (aka fraud or deceit) D knew misrepresentation was false D acted with reckless disregard as to truth or falsity D consciously aware of lack of knowledge Negligent Misrepresentation Duty- look for special relationship or implicit agreement to exercise care in investigation or communication info Breach- failure to be careful in providing info Strict Liability (rare) Applies to sale, rental, or exchange Theory reserved for parties in unequal positions often a contract is involved.

3) Intent to Induce Ps reliance (varies by cause of action) Rule: D must intent to rely on misrepresentation as true

1). Face-to-face transaction: easy to demonstrate intent to induce for fraud, negligent misrep., or Strict liability misrep 2). Where P encounters misrep indirectly, however, rules for the three causes of action vary. 1)Intentional Misrep (fraud/deceit) RULE: D intended to induce reliance on the part of any member of the expected affected class the class D has reason to expect will rely at the time the misrep was made 2) Negligent Misrepresentation Quasi-Privity (NY) rule o D must be aware report will be used for a particular purpose o D must know that a specific party intends to rely on report o There must be linking conduct between D and P Foreseeability (WISC) rule o D intended to induce Ps reliance if Ps reliance is a foreseeable consequence of Ds negligence Restatement 2d sec 552- D intends to induce Ps reliance to a known, intended, and foreseen class of beneficiaries o Where: P is a person or limited group of persons for whose benefit D intends to supply info OR knows his/her client intends to supply it P relies on the info in a transaction D intends to influence or knows his clients intention or in a substantially similar transaction

4) Justifiable Reliance General Rule: Two intertwined concepts P must prove he/she relied P must prove that the RPP would have relied Exceptions: No need to prove RPP would rely where D knows P is gullible, superstitious, ignorant, etc P may be held to standard higher than RPP if P has special knowledge or expertise Related to general rule/sub-rules

Ps duty to investigate o P has NO duty to make inquiry or investigate the truth of an apparently reliable statement made by D o P has a duty to investigate IF circumstances would put a RPP on notice that he is being deceived Exception: Where the P is not held to the RPP standard b/c he is a fool, likely no duty to investigate if circumstances are fishy/questionable

Fact/Opinion Reliance Rule: The RPP may justifiably rely on statements of fact but not of opinion Test for determining fact or opinion: For Facts: Ask how the statement would reasonably be understood. Typically factual statements are objective and subject to being proven true or false. Opinions are subjective (i.e., Beauty is in the eye of the beholder) Exceptions to the rule of Fact/opinion A RPP may justifiably rely on opinion when: D possesses superior knowledge unavailable to P D is in a special relationship with P D has special expertise D appears to be an independent authority but actually has an interest in the transaction Where statement about law is fact-based, P may justifiably rely upon it o Ex. The 18th amendment was repealed yesterday, is treated as a fact-based statement The plumbing in the house complies with the city code is also treated as fact statement if the actual state of the plumbing is not disclosed to P Where statement of law is opinion-based, treat it like other statement of opinion. Ex. your actions violate the 7th amendment is treated as an opinion- a legal conclusion based on facts known to P and D 1. Prediction is an opinion-like statement of belief about what will happen in the future. In general, one may not justifiably rely on Ds prediction of future events.

2. Intention is a fact-like statement regarding someones current state of mind or present plan to take action in the future. In general, one may justifiably rely on Ds statement of intention. 5. Damages Out of pocket: P is given the difference between the value of what s/he has parted with and the value of what s/he has received. [PAID- RECEIVED] (English rule and Minority in US) Benefit of the bargain: P is given the difference between the value of what s/he was promised and the value of what s/he has received. [PROMISED RECEIVED] (Majority in US) Defenses for Misrep 1. Fraud Assumption of the risk will bar suit 2. Negligent misrepresentation Assumption of the risk will bar suit Contributory negligence will bar suit 3.Strict Comparative fault will reduce damages liability misrepresentation Assumption of the risk will bar suit Comparative fault will reduce damages

NUISANCE
Public v Private Nuisance State of mind: Both can be based on any state of mind (intent, negligence, S/L) and state of mind is only relevant to determine damages and defenses Both involve a substantial, unreasonable interference

Public Nuisance Rule: A public nuisance is a substantial unreasonable interference with a right common to the general public.

Examples: right to health, right to safety, right to peace, right to comfort (subjecting public to loud parties, keeping explosives in house, etc) to demonstrate unreasonable interference P can show substantial interference with public right P can show Ds conduct violates a statute or regulation P can show Ds conduct is likely to produce permanent or long lasting effect and is substantial determent to the public.

3 ways

Standing to bring suit Government officials clearly have standing to bring suit to vindicate unreasonable interference with public rights. A private party, in order to have standing to sue, must suffer harm of a kind different from that suffered by other members of the public. Private nuisance Rule: A private nuisance is an interference with the Ps right to use or enjoy her/his property. o Examples of interference: a physical condition; the health of the P; Ps comfort or convenience; Ps peace of mind; threat of future injury. o Unlike trespass, nuisance does not involve interference with Ps possessory interest. Nuisance does not involve any sort of physical entry onto real property. Permanent v. Continuing Private Nuisances (italic part here not relevant to EXAM) o Permanent nuisance cannot be abated (ended) because it has social value or it has caused irreparable damage. (No injunction available.) o Continuing nuisance can be abated (ended). (Both injunction and damages are available. P can bring successive suits until it is abated.)

Private Nuisance: Elements 1. An intentional, negligent or strict liability act The act causes a substantial and unreasonable interference with Ps use or enjoyment of property o Substantial = a RP would take offense (beware of sensitive uses of land) o Unreasonable = For damages: balance equities OR more than a P should bear without compensation For injunction: balance the equities Factors for determining unreasonableness Is the interference more than P should bear without compensation? Factors to Examine: o Extent & duration of the interference o Nature of the interference o Social value of use to which P puts her/his property o Suitability of Ps use of property to that locale o The burden on P compared to D to bear the loss of shift it to others Relationship between zoning and determining unreasonableness Where D complies with zoning rules: o Some courts treat as proof that Ds interference is not unreasonable (in location or operation) o Some courts treat zoning as relevant but not dispositive and may nevertheless find Ds interference unreasonable (in location or operation) o Some courts treat as proof Ds interference is not unreasonable in location but allow consideration of the claim on operation (see e.g. Winn-Dixie) Unreasonableness: Factors for balancing the equities To determine the equities examine: Character & extent of damage inflicted or threatened Good faith or intentional misconduct of D

Ds efforts to avoid harming P Financial investment of P as compared with D Economic hardship resulting if judicial relief is granted or denied Publics interest in having Ds activity continue Who, P or D, was there first (aka coming to the nuisance theory)

Defenses for public or private nuisance Intentional nuisance: Assumption of the risk (sometimes called consent) Negligent nuisance: Assumption of the risk; contributory negligence; comparative fault Strict liability nuisance: Assumption of the risk; comparative fault (to reduce damages)

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