A ccess to all BLAW homework and extra credit will be posted on this page.
IN-CLASS - TORTS Week 2
- P must prove D made an unprivileged publication to 3rd Party
- P must prove publisher acted at least negligently in publishing the communication. Depending on the circumstances, the plaintiff will either need to
- prove that the defendant acted negligently, if the plaintiff is a private figure, or
- with actual malice, if the plaintiff is a public figure or official
- Sometimes P must prove special damages
Examples of defamatory statements are where the communication:
- Suggests P was involved in a serious crime involving moral turpitude or a felony
- Exposes P to ridicule
- Reflects negatively on P's character, morality, or integrity
- Impairs P financially
- Suggests P suffers from a physical or mental defect that shuns otehrs away
Class Assignment - in our case
Link to Defamation of Character assignment. Print it out. Answer questions and bring to class on 6th February, 2018. Assignments will be collected at the beginning of class.
The questions are a continuation of the discussion we had at the end of class regarding defamation of character and how its different for celebraties. In class we discussed the fame of models. Where does fame start? What is the definiion of fame? How would a jury in Alabama evaluate what a 'famous' model is, compared to a jury in New York City where models are more well known? How would this affect the case? This homework assignment helps students navigate their way through the aforementioned issues and come to proper legal evaluation on a defamation case.
Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).
Nearly all commentators agree that the first use of the colloquial Latin tag in the negligence context came in the 1863 case of Byrne v. Boadle, in which a Liverpool flour merchant was sued by a pedestrian who had been struck and seriously injured by a barrel plummeting from the merchant's second-story storeroom. (5) The case came before the common law Court of Exchequer on appeal, and the court's head, Chief Baron Jonathan Frederick Pollock, favoring the plaintiff despite his inability to present affirmative evidence of the defendant's negligence, observed that "[t]here are certain cases of which it may be said res ipsa loquitur, and this seems one of them." (6) In context, Pollock's choice of Latin phraseology was more a gilded bauble of his classical education at Cambridge than a conscious attempt to generate a new legalism; however, subsequent jurisprudence soon minted Pollock's words into legal coinage. (7)
Byrne (P) was struck by a barrel falling from a window as he walked past Boadle’s (D) flour shop and sustained serious personal injuries. A witness testified that he saw the barrel fall from Boadle’s window but had not seen the cause. Byrne did not present any other evidence of negligence by Boadle or his employees. Boadle moved for a nonsuit on the grounds that Byrne had presented no evidence of negligence. The court granted the motion and plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne and reversed. Boadle appealed.
- Can liability for negligence lie solely on account of the type of accident that occurred, without direct evidence of negligence?
Holding and Rule
- Yes. Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of negligence.
A presumption of negligence can arise from an accident. A party need not present direct evidence of negligence when the mere manner and facts of the accident show that it could not have happened without negligence on someone’s part.
A barrel could not roll out of a warehouse window without negligence. This is an example of a case in which res ipsa loquitur (“the thing speaks for itself”) applies. It is evident that the barrel was in the custody of Boadle and its falling is prima facie evidence of negligence. A plaintiff who is injured in a such a fashion should not be required to show that the barrel could not fall without negligence. A rebuttable presumption is created that Boadle was negligent and he has the burden to prove that he was not. Boadle had a duty to ensure that those passing by his shop are not injured by objects under his control. In this case there was a scintilla of evidence with respect to negligence. The defendant failed to show that he was not negligent and Byrne is entitled to the verdict.
Judgment for Byrne affirmed.
The doctrine of res ipsa loquitur cannot be applied when there is direct evidence of the cause of the injury and facts and circumstances surrounding it.
To apply res ipsa loquitur, the following elements must be present:
- The accident must be of a type that normally would not occur in the absence of negligence.
- There was no contribution to the plaintiff’s injuries by the plaintiff or any third party.
- The source of the negligence falls within the scope of the duty owed by the defendant to the plaintiff. This usually (but not necessarily) arises where the instrument causing the injury was within the exclusive control of the defendant, or where there is an inability to identity the specific source of harm. Frequently it arises where the source of negligence lies within a group of people who are unwilling or unable to divulge the actual source.
The plaintiff must still prove all of the other elements to prove that the defendant was liable (i.e. proximate cause etc.)Note that the theory of the negligence in Summers v. Tice is similar to the concept of res ipsa loquitur. In that case the plaintiff was shot and injured by one of two other hunters. While it was certain that one of the two men caused the harm, the plaintiff could offer no proof showing which defendant was at fault. The court shifted the burden of proof to the defendants to prove their innocence. See http://www.lawnix.com/cases/byrne-boadle.html
Liebeck v. McDonald's Restaurants, also known as the McDonald's coffee case and the hot coffee lawsuit, is a 1994
The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds' coffee sales. Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit.
The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful.
What is success in life? How do we judge usccess, happiness and wellness :: LAW
MacDermid, Inc. v. Deiter, 702 F.3d 725 (2d Cir. 2012)
Personal Jurisdiction. Long-Arm Statute. Second Circuit confirms that the Connecticut long-arm statute operates to permit suit against a person accessing a computer network from outside the state provided that the network server is located within the state.
Fteja v. Facebook, Inc. United States District Court for the Southern District of New York 841 F. Supp. 2d 829 (2012)
“Holding that "[a]s a matter of logic" plaintiff must have accepted Facebook's terms of service, even if she does not remember, because putative users cannot become users without accepting the terms of service”
“Whether or not the consumer bothers to look is irrelevant. “Failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract.”
Week 01 Homework
Read the the BLAW syllabus.
Your HWK for the first day will test your ability to follow instructions as what not to do and what to do. • DO: Bring a spiral note book with you first initial and last name spelled out in thick sharpie with font that is at least 2 inches high. I need this to take your photograph and learn your names. Photos will not be posted anywhere – it’s for my internal use only. – 10 points
• DO NOT: Open a computer. Minus 2 points.
• DO NOT: Ask for an exception for the computer rule because you are special – Minus 5 points.
• DO NOT: Be late for class – Minus 5 points.
• DO NOT: Send me emails “clarifying “ the above – Minus 10 points.
You may want to buy about 3 spiral notebooks as most students fill up three notebooks. All notebooks can be used in the midterms and FINAL so long as nothing is printed and its all your own noes. Yes – open notebooks for the Midterm and Final – but never is a computer allowed for anything.
Whitman v. Anglum here Case Brief
121 days @ 175 quarts of milk 21,175 quarts @ $0.09 = $1,905.75 in $33,584.60 in 2018 -Broad rule from this case that applies to all cases – contract begins when it is executed between the two parties. They know the risks they are taking. Once you have signed, you’ve agreed to something and you’re bound.
Stanford Gold v. Salem Lutheran Home Associationd here Case Brief
Plaintiff: Executive of deceased’s estate. Facts: -84-year-old Mr. Nicholas Chouvaldjy wanted to be a resident in life care home. -He moved into the home on Aug. 1st as probationary period and paid for Aug. and Sep. -Board of directors to have a meeting to determine P’s eligibility for staying there. -Resident and board signed contract and he pre-paid the fee, he then died of stroke. Procedure: -Ct below, at trial without jury, ruled in favor of Defendant, Luthern Home. -Relatives appeal.
I. When did the contract in this case begin?
II. Can heirs of deceased recover damages under unjust enrichment theory when the contract had not yet gone into effect? Holding: I. The contract begins when the two parties signed the contract.
II. Heirs of deceased cannot recover damages under unjust enrichment theory when the contract had not yet gone into effect. Ruling: Judgment of lower court is affirmed; ruled in favor of defendant. Rationale: -Plaintiff and Defendant entered into contract with certain assumptions. P is guaranteed place to live until he died. -Plaintiff’s death was reasonably foreseeable. -Plaintiff received a benefit for his money: peace of mind, place to stay. Evaluation: -Dissent – Justice Peters. Implied condition?
-Broad rule from this case that applies to all cases – contract begins when it is executed between the two parties. They know the risks they are taking. Once you have signed, you’ve agreed to something and you’re bound.