The Role of the Courts Madisonian

1. 
   Provision of medical services is regarded as qualitatively different from the sale of products
   

1. 
   Manufacturing
   
   1. 
      One product that deviated from intended design
      
   2. 
      Winterbottom v. Wright
      
   3. 
      Speller v. Sears
      
   4. 
      MacPherson v. Buick
      
   5. 
      Escola v. Coca Cola
      
2. 
   Design
   
   1. 
      All products suffer from the same defective design, making them unreasonably dangerous
      
   2. 
      Negligence Predominates
      
      1. 
         Even though the claim is for strict liability
         
      2. 
         When foreseeable risk of harm posed by product could have been avoided by reasonable alternative design and omission of alternative design  liable
         
   3. 
      Π must show:
      
      1. 
         Reasonable alternative design
         
         1. 
            Cost and utility of alt. design, compared to cost and utility of design
            
   4. 
      Types of claims
      
      1. 
         Structural defects
         
         1. 
            Choice of materials
            
         2. 
            E.g. Titanic
            
      2. 
         Lack of Safety Features
         
         1. 
            Could have been installed w/ little expense makes it defective not to have it
            
            1. 
               State of the Art defense:
               
               1. 
                  ∆ can argue other products also lack the safety feature
                  
               2. 
                  BUT, this is not dispositive automatically
                  
      3. 
         Foreseeable / Unforeseeable misuse
         
         1. 
            Need to design to guard against foreseeable misuse
            
            1. 
               .e.g. the saw blade case
               
      4. 
         Regulatory Compliance  does not block liability automatically
         
         1. 
            Unless it’s there’s a preemptive statute
            
   5. 
      Campo v. Scofield
      
   6. 
      Volkswagen v. Young
      
   7. 
      Linegar v. Armour
      
   8. 
      Halliday v. Sturn
      
3. 
   Warning
   
   1. 
      Manufacturer neglected to give warning of dangers in product
      
   2. 
      Unknowable Dangers:
      
      1. 
         If danger from product design was unknowable at time of manufacture it’s an unforeseeable risk
         
   3. 
      Can’t warn away a design defect
      
   4. 
      ∆ must still give warning of non-obvious risk of personal injury
      
   5. 
      Learned Intermediary
      
      1. 
         Drug manufacturers need to instruct physicians how to warn patients
         
   6. 
      Risk-Utility Basis:
      
      1. 
         Foreseeable risk of harm imposed by product could have been reduced or avoided by reasonable instruction or warnings
         
         1. 
            Omission renders product unsafe
            
   7. 
      Post-Sale duty to warn / duty to monitor
      
      1. 
         When manufacturer learns of risk, must give warning to public / consumers
         
      2. 
         Some cts. have ruled that there’s an affirmative duty to “keep abreast of the field by monitoring performance and safety of products after sale”
         
   8. 
      MacDonald v. Ortho
      
   9. 
      Vassallo v. Baxter
      
   10. 
       Hood v. Ryobi America
       
4. 
   Open and Obvious
   
   1. 
      Manufacture defect: Can still recover if it is obvious
      
   2. 
      Design Defect:: obviousness is a factor, but doesn’t automatically bar recovery
      
      1. 
         Whether design’s benefits outweigh its dangers considering alternative designs
         
         1. 
            If not, π can recover even though danger is obvious
            
   3. 
      Warning: if obvious, failure to warn fails
      

1. 
   Daly v. General Motors
   
2. 
   Failure to discover risk  NO comparative / contributory negligence
   
3. 
   Knowing assumption of risk  form of comparative negligence
   
   1. 
      If π decidd to use the product knowing the risk, to the extent that it was unreasonable, that could constitute contrib./compar negligence
      

1. 
   2^nd: 402(a) - looked at problem from the eyes of the consumer
   
   1. 
      Seller is engaged in selling the product;
      
   2. 
      Expected to and does reach the use or consumer w/o substantial change
      
      1. 
         Exception: foreseeable misuse
         
         1. 
            E.g. removing safety devices
            
   3. 
      Applies to everyone w/in the stream of commerce
      
   4. 
      NOT applicable to a service
      
      1. 
         Product:
         
         1. 
            Physical item
            
      2. 
         Service:
         
         1. 
            Paying for somebody’s skills
            
2. 
   3^rd: PL
   
   1. 
      switched to look at rule form manufacturer’s standpoint
      

1. 
   Constitution Article VI, § 2
   
2. 
   Geier v American Honda
   

12. 
    Defamation
    
    1. 
       To establish prima facie case, π must show:
       
       1. 
          Defamatory statement  false and defamatory statement
          
       2. 
          Publication  communicating of the statement to person other than the π
          
       3. 
          Fault  at least negligence (sometimes more)
          
       4. 
          Special Harm  money or actionability of statement despite non-existence of special harm
          
    2. 
       Communication
       
       1. 
          Harm to reputation
          
          1. 
             If the statement had been believed, it would injure the π’s rep.
             
       2. 
          Defamatory if any one of interpretations which reasonable person might make would tend to injure π’s rep and π shows that at least one of recipients did in fact make that interpretation
          
       3. 
          Statement was reasonably interpreted by at least one recipient
          
       4. 
          Intent is irrelevant
          
          1. 
             Even if ∆ behaved non-negligently and intended to refer to someone else, π can still sue
             
       5. 
          Groups:
          
          1. 
             Can only recover if the group is relatively small
             
          2. 
             Neiman Marcus case
             
       6. 
          Reference need not be by name if reasonably understood to be referring to π
          
    3. 
       Truth as a defense
       
       1. 
          ∆ has burden of proving truth
          
       2. 
          Matters of public interest
          
          1. 
             Π must bear burden of proving falsity if ∆ is
             
             1. 
                Media organization
                
             2. 
                Statement involves matter of public interest
                
    4. 
       Opinion
       
       1. 
          Pure opinion can never be defamatory
          
       2. 
          Implied facts
          
          1. 
             If opinion implies truth of undisclosed facts, statement treated as defamatory
             
          2. 
             Dominick Dunn case
             
    5. 
       Slander
       
       1. 
          Oral statements
          
       2. 
          Must show π suffered pecuniary harm
          
    6. 
       Slander / Defamation Per se
       
       1. 
          No requirement for proving special harm
          
          1. 
             Crime
             
          2. 
             Loathsome venereal disease
             
          3. 
             Moral Turpitude  promiscuity, adultery
             
          4. 
             Impugning someone’s business or profession
             
    7. 
       Libel
       
       1. 
          All printed matter
          
       2. 
          Embodied in physical form
          
       3. 
          Broadcast on TV or radio
          
          1. 
             Usually treated as libel rather than slander
             
             1. 
                Written script
                
             2. 
                Can be transcribed
                
       4. 
          No proof of special harm required
          
       5. 
          Matters of Public Concern / Public figures / Public Officials
          
          1. 
             NYT v. Sullivan
             
             1. 
                Requirement of actual malice
                
          2. 
             newsworthiness
             
       6. 
          Private concern:
          
          1. 
             Presumed damages may be allowed w/o showing actual malice
             
13. 
    Privacy
    
    1. 
       Invasion of privacy – 4 distinct torts
       
       1. 
          Misappropriation of Identity
          
          1. 
             If name or picture used by ∆ for his own financial benefit w/o permission
             
       2. 
          Intrusion on π’s solitude
          
          1. 
             Solitude intruded upon and this intrusion would be highly offensive to a reasonable person
             
          2. 
             Must be a private place
             
       3. 
          Publicity of Private Life
          
          1. 
             If ∆ h as publicized the details of π’s private life and effect is highly offensive to reasonable person
             
             1. 
                Not of legitimate public concern
                
             2. 
                Not newsworthy
                
                1. 
                   Public Officials / Figures
                   
                   1. 
                      Most of their private life is going to be newsworthy
                      

4. 
   False Light
   
   1. 
      If π is placed in a false light and false light would be highly offensive to a reasonable person
      
      1. 
         Actual malice
         
         1. 
            Only can recover for false light when π can show that the ∆ knew the portrayal was false or acted w/ reckless disregard for the truth of it
            

As π – frontload duty analysis  more questions of law than facts