LAW 512-001 – Torts II


Premises Liability

In general, there is no duty to people off of one's property for natural land conditions.

However, landowners are liable for trees on their property that they know or should know are defective. In such a case they must take reasonable reasonable precautions.

The duty a rural tree-owner owes people on adjoining highways and sidewalks is determined by factor balancing of patterns of land use, road use, and traffic density.

Some states let neighbors cut roots or branches that come over onto their property in "self-help."

One cannot use his land to interfere with the public's right to lawfully use public highways.

A landowner has the duty to exercise reasonable care in the use of his land so as to prevent injury to travelers lawfully using the highways adjacent thereto.

If a natural condition is altered, it becomes artificial and reasonable care is needed for the protection of those outside the premises.

A land owner owes a duty to travellers who fall into excavations on land immediate adjoining a highway or sidewalk.

  • This extends to those who deviate intentionally from a highway or sidewalk for a casual purpose connected with travelling.

A land owner has no duty to remove natural snow or ice.

A land owner has no duty for artificial conditions unless he knows or should know that it poses a risk to someone.

The duty that a landowner owes someone on his land depends on that person's status.

There are three different statuses people can have under the common law.

  1. Trespasser

    A trespasser is one who comes onto another's land without permission or privilege.

    In general, under both the common law and Restatement Second, a landowner owes no duty of care to a trespasser.

    Exceptions:

    1. Discovered trespassers
      • Land owners/occupiers must use reasonable care to avoid injuring discovered trespassers by an active operation
      • Land owners/occupiers must warn of or make safe known dangerous artificial conditions unlikely to be discovered.
      • The Restatement Second also requires warning of passive conditions.
    2. Frequent trespassers to a limited area of land
      • When trespasser is anticipated, the land owner has a duty to exercise reasonable care to avoid reasonably foreseeable risk.
      • Defendant must anticipate (know or be reasonably expected to know) the trespassers and exercise reasonable care in his activities for their protection.
    3. Tolerated intruders
      • Continued toleration of a trespassers may amount to permission, turning them into licensees instead.
  2. Licensee

    A licensee is one who comes onto another's land with permission or privilege.

    An owner/occupier has a duty to warn of or make safe a known dangerous condition that isn't obvious.

    An owner/occupier has a duty of reasonable care for his active operations for protection of licensees once discovered and those whose presence might be reasonably anticipated.

    Police officers and firefighters are usually classified as licensees.

  3. Invitee

    And invitee is one who enters a premise on express or implied permission concerning business for the benefit of the owner/occupier.

    An owner/occupier's duty to an invitee is to use reasonable care to keep the premise in a reasonably safe condition.

    • This includes a duty to make reasonable inspections to discover dangerous conditions and to make them safe.

    An owner has no duty to invitees for hazards which are open and obvious to the invitee.

    An owner may be liable for third-party criminal activity when it is forseeable.

    Public officials like sanitation or safety inspectors are invitees.

Premises Liability Table
Undiscovered Trespasser Discovered Trespasser Child Trespasser Licensee Child Licensee Young Child Licensee Invitee
In General No duty of care Reasonable care to avoid reasonably foreseeable risk Reasonable care to avoid injuring by an active operation Reasonable care to avoid injuring by an active operation Reasonable care to keep the premise in a reasonably safe condition
Patent Natural Hazard No duty of care No duty of care See also: Attractive Nuisance No duty of care Warn of or make safe Make safe No duty of care
Patent Artificial Hazard No duty of care No duty of care See also: Attractive Nuisance No duty of care Warn of or make safe Make safe No duty of care
Latent Natural Hazard No duty of care No duty of care Warn of or make safe Warn of or make safe Make safe
Latent Artificial Hazard No duty of care Warn of or make safe Warn of or make safe Warn of or make safe Make safe
Attractive Nuisance

An attractive nuisance is a dangerous feature on property that has an unusual characteristic or nature that makes it attractive to children, who try to convert it to a thing of amusement.

The owner/occupier must use reasonable care to protect children when the following elements are met:

  1. The owner is aware or should be aware of the dangerous condition.
  2. The owner knows or should know that children are in the vicinity.
  3. The condition is likely to cause injury if a child encounters it because of the child's inability to appreciate risk.
  4. The magnitude of the risk outweighs the utility or expense to remedy.

In general, there is no liability upon the landlord for defective conditions existing at the time of the lease.

However, the landlord must disclose all known concealed dangerous conditions to the tenant at the time of the lease.

A landlord is liable for injury resulting from him breaking a contract to repair something.

The implied warranty of habitability creates a duty on the part of the lessor to deliver the premises in a habitable condition.

The minority says that a landlord must exercise ordinary care toward his tenant and others on the premises with permission.

A landlord has a duty to take reasonable precautions against criminal acts against his tenants. Courts use three factors in determining this duty:

  1. Ability to exercise control
  2. Advantageous position in exercising control and minimizing risk
  3. Knowledge about the rise of criminal behavior.
Damages

There are three basic types of money damages in torts:

  1. Nominal Damages

    Nominal damages consist of a small sum of money (often one dollar) awarded to the plaintiff in order to vindicate rights, make the judgment available as a matter of record in order to prevent the defendant from acquiring prescriptive rights, and carry a part of the costs of the action. The actual amount is unimportant, as long as it is trivial.

  2. Compensatory Damages

    Compensatory damages are intended to represent the closest possible financial equivalent of the loss or harm suffered by the plaintiff, to make the plaintiff whole again, to restore the plaintiff to the position the plaintiff was in before the tort occurred.

    This is done with money. All losses must be translated into a dollar value to compensate the plaintiff.

    There are two types of compensatory damages:

    1. Special Damages

      Special damages are compensatory damages awarded over economic losses, such as:

      • Past and future medical expenses
      • Past and future lost wages
      • Loss or impairment of earning capacity
        • This means one cannot do the job that he wants to anymore, even if his new job does not pay less.

      Future costs must consider:

      1. Inflation
      2. Interest
      Reduce to Present Value

      An award for future damages must be awarded as a definite lump sum amount set at the time of the judgment.

      There are three ways of reducing to present value:

      1. Inflation-discount method
        • Accounts for interest and inflation separately.
      2. Real interest method
        • Sets a flat interest rate approximating the practical rate.
        • Based on the principal that overpaying the plaintiff is better than underpaying him.
      3. Total offset method
        • Says that interest and inflation will cancel each other out and just pays the actual awarded amount.
    2. General Damages

      General damages are compensatory damages awarded over non-economic harms, such as:

      • Pain & suffering
      • Mental anguish
      • Loss of function or appearance
      • Loss of enjoyment of life

      With general damages, it is not necessary to reduce to present value.

      Sometimes general damages are calculated using the "per diem" method, which says to multiply what such harm for a short period of time should be compensated for by the length of time that the plaintiff must endure the harm, i.e. their life expectancy.

    Compensatory damages are not taxed, although a minority of jurisdictions award lost wages based on what the plaintiff's post-tax income would have been.

  3. Punitive Damages

    Punitive damages are an additional sum, over and above the compensation of the plaintiff, awarded in order to punish the defendant, to make an example of him, and to deter him and others from engaging in similar tortious conduct.

    Because they are made to punish, they are focused on the behavior of the defendant, not the plaintiff.

    The state can limit how much of a punitive damages award a plaintiff will receive.

    Punitive damages are taxed.

    The majority says that punitive damages cannot be recovered against a defendant's estate.

    Punitive damages are usually limited to a single digit multiple of the compensatory damages. State Farm v. Campbell.

    The majority allows evidence of the defendant's wealth to be admitted for punitive damages.

    Most jurisdictions have "clear and convincing" as the standard of proof for establishing entitlement to punitive damages. This is a higher standard than the usual preponderance of the evidence.

    The majority and the Restatement Third permit employers to be liable for punitive damages for their employees if:

    1. The principal authorized or ratified the act,
    2. The principal was reckless in employing or retaining the employee, or
    3. The employee was employed in a managerial capacity and was acting in the scope of employment

The majority also recognizes separate derivative claims like loss of consortium just for being married to the injured.

Wrongful Death

Wrongful death is a cause of action allowing some form of recovery for the death of another due to tortious conduct.

Every state has a wrongful death statute, creating a cause of action for wrongful death.

While all states ordinarily allow recovery for injuries to viable unborn children later born alive, not all allow wrongful death actions for children who died before being born. (Illinois allows wrongful death actions to be brought for children killed before becoming viable.)

Wrongful death actions allow the beneficiaries of the deceased to recover the losses suffered by them.

Beneficiary

A spouse is always considered a beneficiary. An unmarried cohabitant is always considered not a beneficiary.

Some states consider domestic partners to be beneficiaries.

Children are beneficiaries in the majority of states.

Step-children are not in the majority of states.

Some states require children born out of wedlock to be dependencies of the deceased.

Parents are usually only beneficiaries if a child dies without a spouse or children.

The next-of-kin is a beneficiary in some states if he can show a financial loss.

The damages in a wrongful death action are set by statute and usually based on the pecuniary (economic) injury resulting to the beneficiary by the death.

  • This is usually measured by determining the monetary contribution that the decedent would have made during his lifetime to the beneficiary, and it may include the market value of services the decedent would have made during his lifetime to the beneficiary.
    • If there are multiple beneficiaries, the monetary contribution that the decedent would have made to each beneficiary is added up with the others'.
    • The expected lifetime is the shorter of the decedent's and the beneficiary's, as they would have had to have overlapped for the decedent to have provided the beneficiary with benefits.
  • The minority uses loss to the decedent's estate.
  • Typically funeral expenses are included.

Most jurisdictions recognize that the economic loss suffered by a child that loses his parent includes loss of training, education, guidance, and nurture in addition to economic loss.

When a minor child dies, states are split as to whether or not to allow non-pecuniary losses. Pecuniary losses can be substantial and are never capped, but many states allow non-pecuniary losses as well, although sometimes with a cap.

A slight majority allows punitive damages in a wrongful death action.

Survival Statute

A survival statute provides that a cause of action for personal injury survives the death of the plaintiff, defendant, or both by allowing claims to be brought by or against decedents' estates.

Conscious pain and suffering, lost wages, and hospitalization costs prior to a wrongful death are usually recoverable under a survival action.

Remittitur

Remittitur is when the judge reduces damages to below what the jury awarded.

Remittitur can be granted when the award:

  1. Falls outside the accepted range
  2. Is a result of passion or prejudice
  3. Shocks the judicial conscience
Additur

Additur is when a judge increases a jury's damage award. It is very rare and does not exist in federal court.

The American Rule is that the prevailing party does not get attorney's fees unless provided by statute or contract.

  • Bringing or maintaining a frivolous lawsuit often is a statutory exception.

Defendants usually pay their attorneys by the hour.

Structured Settlement

A structured settlement is a settlement that is paid out as an annuity instead of a lump sum.

Property Damage

Damages for physical damage to property are the market value of the property if it was destroyed or converted and the difference in value if it was only damaged.

Market Value

Market value is what a ready, willing and able buy would pay on the open market.

Defenses

Defenses Based on Plaintiff's Conduct

Joint Tortfeasor

Joint tortfeasors are people whose concurrent negligence contributed to cause plaintiff's injuries.

There are three types of joint tortfeasors:

  1. True joint tortfeasors who acted in concert
    • If only one actually did the harm, the other must have incited him to do it, not just have been there.
  2. Individual defendants who fail to perform a common duty to the plaintiff
  3. Individual defendants who independently contribute to a single, individual harm
Joint and Several Liability

Joint and several liability comprises joint liability and several liability.

Joint Liability

Joint liability allows one defendant to be liable for the whole damage of all joint tortfeasor defendants.

Several Liability

Several liability is simply being liable for one's own conduct.

The majority has retained joint and several liability but has changed it in some way for those who are not true joint tortfeasors.

The trend is to subtract settlements first, then multiply by the percentage of fault for comparative negligence, although some states do these steps in reverse.

Contribution

Contribution is the right of a joint tortfeasor to recover another's portion of the liability for the damages paid to the plaintiff.

The majority and the Restatement Third allow for contribution.

Contribution is the right of the tortfeasor and does not depend upon a judgment being obtained against that person by the plaintiff(s).

Contribution is reduced to the percentage of liability of that defendant in comparative negligence states.

Contribution is not allowed for intentional tortfeasors.

The majority does not allow non-immune tortfeasors to collect contribution from immune tortfeasors.

The majority allows a sued tortfeasor to collect contribution from after the statute of limitations has run.

Contribution can be collected through a cross-claim, impleading, or a separate suit.

A tortfeasor can seek contribution after making a settlement agreement, but he must prove that the other person was a joint tortfeasor and that the settlement was reasonable.

At common law, plaintiffs could not sue joint tortfeasors separately, but states have since changed this.

Mitigation of Damages

Mitigation of damages, also known as the rule of avoidable consequences, requires a plaintiff to seek appropriate treatment for his injuries so as to reduce his damages.

  1. P has a duty to take reasonable steps to mitigate damages. In a personal injury claim, that means the P must seek appropriate treatment to effect a cure or healing and to prevent aggravation.
  2. Failure to Mitigate Rule (with regard to permanent injuries): P cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to treatment, including surgery, if a reasonable person would do so under the same circumstances.
  3. Stated more broadly, P cannot recover for damages that P could have avoided if P had acted reasonably; P contributes to his damages.
  4. Test: What would a reasonable person do under the same circumstances?
  5. When considering if P failed to mitigate damages by not having surgery, consider what an ordinary prudent person would do.
    Factors to consider:
    1. risk involved
    2. probability of success
    3. expenditure of money or effort
  6. This is not the same as contributory negligence where P contributed to the happening of the accident or injury.
Apportionment of Damages

Damages that are divisible can be divided among multiple tortfeasors according to each's causation.

When concurrent tortfeasors cause an indivisible injury, each has several liability and therefore can be held liable for the whole injury.

When successive tortfeasors in unrelated incidents cause an indivisible injury, the first tortfeasor cannot be held liable for the actions of the second tortfeasor, as he is a superseding intervening cause. However, the second tortfeasor can be held liable for the entire injury.

Original Tortfeasor Doctrine

The original tortfeasor doctrine says when successive tortfeasors in related incidents cause an indivisible injury, the first tortfeasor can be held liable for the whole injury.

A jury can compare liability between a tortfeasor and a product manufacturer.

Vicarious Liability

Vicarious liability, also known as imputed negligence, is the imposition of liability on one person for the actionable conduct of another, based solely on the relationship between the two persons.

Respondeat Superior

Respondeat superior is when an employer, master, or principal is liable for its employee, servant, or agent.

Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the scope of their employment. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.

Scope of Employment

Acts necessary to the comfort, convenience, health, and welfare of the employee do not take the employee outside the scope of employment.

Going-and-Coming Rule

The going-and-coming rule says that commute to and from work is outside the scope of one's employment.

The going-and-coming rule does not apply when an employee endangers others with a risk arising from or related to work. This is determined by if it "was a generally foreseeable consequence of the activity." The conduct is foreseeable if it is not so startling or unusual that it would seem unfair to include the loss as part of the employer's cost of doing business.

Slight Deviation Rule

Approximately half of the states follow the slight deviation rule, which says that a detour, or a slight deviation, is sufficiently related to the scope of employment, but a frolic, a substantial deviation, is not.

Slight Deviation

A slight deviation for the comfort, convenience, health, and welfare of the employee while at work is not outside the scope of employment if the conduct is not a substantial deviation from the duties of employment.

Respondeat superior generally does not apply for intentional torts.

  • Only when it is reasonably connected with the employment and so within its scope of employment.
    • The majority of jurisdictions and the Restatement do not allow punitive damages unless the principal authorized or ratified the acts, was reckless in employing or retaining the agent, or the agent was employed in a managerial capacity and was acting in the scope of employment.
Independent Contractors

Employers are not vicariously responsible for the tortious acts of independent contractors.

A person is a contractor if he has the right to control the physical details of the work.

Exceptions:

  • Where there is a non-delegable duty, the person upon whom the duty is imposed is responsible for an independent contractor's actions in negligently performing that duty.
  • Apparent Authority

    One who represents that another party is his servant or agent may be held vicariously liable for the latter's negligent acts to the extent of that representation.

  • When the contractor is negligent in performing an abnormally dangerous activity, the person who hired him is vicariously liable.
  • One who contracts for an illegal activity is vicariously liable for any damage done by such an independent contractor.
Joint Venture

The majority rule is that vicarious liability may be imposed upon those engaged in a joint venture or enterprise.

The Restatement (Second) of Torts § 491 comment c defines the four elements of a joint enterprise as:

  1. an agreement, express or implied, among the members of the group;
  2. a common purpose to be carried out by the group;
  3. a community of pecuniary interest in that purpose, among the members; and
  4. an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Bailment

A bailor is generally not liable for damage caused by the use of his property by a bailee.

Exceptions:

  • Family Car Doctrine

    The family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner's family.

  • It is traditionally presumed that an owner controls the vehicle when he is a passenger therein, but many states have abandoned this presumption.
  • One is liable for his own negligence in loaning out his car.
Imputed Contributory Negligence

Some jurisdictions allow contributory negligence to be imputed to a party for the negligent acts of another.

The majority rejects imputed contributory negligence.

When retained, imputed contributory negligence generally follows the both-ways test.

Both-Ways Test

The both-ways test states that contributory negligence must be imputed if ordinary negligence would have been, and vice versa.

While largely rejected, contributory negligence is still generally imputed on an employer for the negligent actions of its employee.

When a claim is held to be derivative in nature, such as loss of consortium or wrongful death, the contributory negligence of an injured party will still be imputed to the plaintiff, barring or reducing his claims.

Strict Liability

Strict liability is when one is liable even if he was not negligent nor acted intentionally.

To establish strict liability, there must be:

  1. Duty
  2. Causation
  3. Damage
Animals

The basis of strict liability for animals is on those keep, possess, or harbor the animal, not just the owner.

One is not liable for wild animals unless he controls or possesses one.

Trespassing Animals

There are four different rules in use for trespassing animals:

  1. Some courts impose no strict liability for trespassing animals and just use a negligence standard.
  2. Common Law Trespassing Animals Rule

    The owner of animals likely to roam and do damage is strictly liable for their trespasses.

    An owner is strictly liable for the damage done by the trespass of animals as long as it was reasonably foreseeable.

    Livestock straying from a highway on which they are lawfully being driven are exempt.

    Dogs and cats are not included.

  3. Fencing Out Statute

    A fencing out statute states that there is strict liability for the owner of an animal that breaks through another's properly fenced-out land.

  4. Fencing In Statute

    A fencing in statute holds an owner of animals strictly liable if an animal is not properly restrained.

    If the animal is fenced in properly and escapes anyway, there are three different responses:

    1. No strict liability, instead just using negligence
    2. Strict liability
    3. Common Law Trespassing Animals Rule

      The owner of animals likely to roam and do damage is strictly liable for their trespasses.

      An owner is strictly liable for the damage done by the trespass of animals as long as it was reasonably foreseeable.

      Livestock straying from a highway on which they are lawfully being driven are exempt.

      Dogs and cats are not included.

Wild Animals

The majority rule imposes strict liability upon the possessor of wild animals that injure someone.

  • An increasing number of states forgo this in favor of a negligence standard for zoos.
Domestic Animals

There are three rules for liability concerning domestic animals:

  1. One-Bite Rule

    Some states allow domestic animals "one free bite" for which the owner of the animal cannot be held liable for at all, but they then hold owners strictly liable for any future bites by the animal.

  2. A majority of states impose strict liability if an owner knows or has reason to know that a domestic animal has vicious propensities abnormal to its class.
    • Generally, breed does not matter.
    • If the owner does not know or have reason to know, a negligence standard is used.
  3. Some states set a rule by statute, often doing away with the requirement that a plaintiff prove scienter.
    • (Scienter is the "knows or has reason to know" part.)

In comparative negligence states, it can be a defense to strict liability to reduce the recovery. The Restatement Third says to compare the plaintiff's negligence to the defendant's strict liability in cases involving abnormally dangerous activities and animals.

In comparative negligence states, assumption of risk is also a defense to strict liability.

Abnormally Dangerous Activity

The majority of jurisdictions follow the rule from Rylands, which provides that those who use, or permit others to use, land for the conduct of abnormally dangerous activities are strictly liable for resultant damages.

To determine if an activity is abnormally dangerous, courts generally impose two requirements:

  1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors.
  2. The activity is not a matter of common usage in the community.
Restatement Second of Torts § 520

Abnormally Dangerous Activities

View on Lexis Advance

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

  1. existence of a high degree of risk of some harm to the person, land or chattels of others;
  2. likelihood that the harm that results from it will be great;
  3. inability to eliminate the risk by the exercise of reasonable care;
  4. extent to which the activity is not a matter of common usage;
  5. inappropriateness of the activity to the place where it is carried on; and
  6. extent to which its value to the community is outweighed by its dangerous attributes.

The majority of states have strict liability for blasting.

Less Important Examples

These activities are sometimes found to be abnormally dangerous, but some are sometimes not:

  • Transportation and storage of toxic chemicals and flammable liquids
  • Pile driving
  • Crop dusting
  • Fumigation
  • Rocket testing
  • Fireworks displays
  • Plutonium production
  • Hazardous waste disposal
  • Oil well operation
  • Storage of large quantities of liquids

An overwhelming majority is against strict liability for the sale of firearms.

A majority uses negligence instead of strict liability for ground damage resulting from airplane crashes.

There is no strict liability for the acts of a third party over whom the defendant has no control even if the defendant's activity is subject to strict liability.

Public Duty Exception

The rules as to strict liability for abnormally dangerous activities do not apply if the activity is carried on in pursuance of a public duty imposed upon the actor as a public officer or employee or as a a common carrier

Product Liability

Product liability is the liability of a manufacturer, seller, or other supplier of chattels to one who suffers physical harm therefrom.

Product liability can be based on three different theories:

  1. Negligence
    • All jurisdictions accept that one does not have to be in privity for a claim based on negligence.
    • Generally, negligence liability is imposed upon all sellers of chattels—whether damage is to person or property, the manufacturer produced the whole product or a component part, or the injured person was the immediate purchaser or not.
  2. Warranty
    Express Warranty

    A manufacturer is liable for a breach of an express warranty, even though a consumer purchased the good from a third-party.

    For a warranty to be express, the manufacturer must have made a representation of a material quality of the product, on which the consumer relied.

    Liability for express warranties is based on the principle that:

    1. The original act of delivering the product is wrong.
    2. The article is not safe for the purposes for which the consumer would ordinarily use it.
    3. It lacked qualities which the manufacturer represented it as having.
    4. The absence of the qualities could not be readily detected by the consumer.

    It also must still cause damage.

    Implied Warranty
  3. Strict Liability

There are three kinds of defects that can lead to product liability:

  1. Manufacturing Defect
  2. Design Defect
  3. Warning Defect
Product Liability Table
Manufacturing Defect Design Defect Failure to Warn
Negligence

Breach of duty of care results in the product departing from its intended design

Plaintiff must prove failure to measure up to standard of care. Plaintiff would be expected to produce evidence of unreasonable conduct during the manufacturing process (an impossible task in many instances)

The design decision is evaluated.

Plaintiff must prove reasonable alternative design.

Risk/Utility analysis is used by overwhelming majority of courts.

State of the art evidence is a factor to consider.

Breach of duty of care

Plaintiff must prove that adequate warnings or instructions were not provided and defendant had actual or constructive knowledge of the potential risk or danger

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.

Strict Liability

Product departs from the intended design.

Plaintiff must prove that the product does not conform to the design or the other products in some way.

Foreseeable risks of harm could have been reduced or avoided by adoption of reasonable alternative design.

Design decision is evaluated

Plaintiff must prove reasonable alternative design.

Risk/utility analysis is used

The majority considers the O'Brien factors, state of the art evidence, and whether the defect was open and obvious.

Foreseeable risks of harm could have been avoided by the adoption of reasonable instructions or warnings.

Plaintiff must prove that adequate warnings or instructions were not provided and that defendant had actual or constructive knowledge of the potential risk or danger.

Obvious dangers/generally known risks – no liability

State of the art evidence is a factor to consider.

Breach of Warranty

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Express warranty is breached when there is a misrepresentation of a material quality of the product, on which the consumer relies.

Implied warranty of merchantability is that it is fit for its intended use.

Implied warranty of merchantability is that it is fit for its intended use.

State of the art evidence is a factor to consider.

Nuisance

Nuisance is a cause of action similar to trespass filed by the possessor of land against someone who creates a condition that interferes with the possessor's use or enjoyment of the property.

Defamation

A judge will determine if a statement has a reasonably defamatory meaning. A communication is defamatory if it damages one's reputation—that is, if it diminishes the respect, goodwill or esteem or tends to exhibit unpleasant. If a judge decides that there are two valid interpretations—one defamatory and one not, it is an issue for a jury. The standard for defamation must be read and construed in the sense that a reader would ordinarily construe it.