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by Professor Frank B. Cross 

Types of product defects

Manufacturer defect: The product was manufactured in a way that made it unsafe.

Design defect: The product was designed in a way that made it unsafe. EXAMPLE: Ford Pinto case – gas tank was designed to be manufactured too close to the rear bumper.

Defect must make the product unreasonably dangerous. An automobile is reasonably dangerous.

But an automobile assembled without seat belts and airbags is unreasonably dangerous.

A product that is widely known to be dangerous but yet widely accepted to be used to satisfy a need is deemed reasonably dangerous (e.g., guns, kitchen knives, cigarettes). NB: Retailers can be sued for selling a product that is unreasonably dangerous.

Duty to warn: Sometimes the product itself is the best it can be, but there is still a danger there that the ordinary person would not be able to perceive. The product manufacturer has a duty to warn others about that danger. EXAMPLE: Medication side effects. The warning must be conspicuous enough to apprise the person of the nature of the risk. This includes both the font of the warning as well as the placement of the warning. EXAMPLE: Warnings on a pack of cigarettes is adequate as a matter of law per U.S. Congress. A cigarette smoker assumes the risk and thus cannot sue later.

Learned intermediary doctrine:

EXAMPLE: A man goes to a doctor. The doctor prescribes a certain medication for him. He takes it and suffers from adverse effects due to the prescribed medicine. The doctor was not negligent, so the doctor is immune from suit as the doctor was presumably acting in his best interests. He sues the drug manufacturer as a result. The drug manufacturer is immune from suit due to the “learned intermediary doctrine”, to wit: The drug manufacturer was relying upon the doctor (learned intermediary) as to what patients would be appropriate to receive this prescribed drug.

Specific Business Torts

Tortious interference with a contractual relationship: When one business is in privity of contract with another person/business, a competing business cannot interfere with that relationship and try to steal its rival business’ client.

Requirements:

• A contract existed and all the elements of what makes a contract valid under the law are met.
  • EXCEPTION: A voidable contract can be considered a valid contract if the contract was not voided prior to the time of the tortious interference.

• The Defendant was aware of the contract.

• The Defendant intentionally induced the breach of contract. AND

• The Defendant inducing the breach must have behaved improperly.
  • Must show that the Defendant had an improper motive.

Defenses

Privilege:

• A corporate officer is immune from liability if acting in the best interests of his/her business.

• A lawyer who gives attorney-client privileged advice to a (potential) client which results in the tortious interference of a contract is immune from suit.

Tortious interference with a business relationship: Same as tortious interference with a contractual relationship except there is no contract.

U.S.A. is a capitalist country, and free enterprise and competition among businesses is encouraged.

EXCEPTION EXAMPLE: It is improper for a competing restaurant to have its employees outside of a rival restaurant handing out flyers to their patrons and encouraging them to eat at the other restaurant, especially if the employees say anything derogatory about the rival restaurant. Thus, it is difficult to make a case for this tort.

Misappropriation (usually, of Trade secrets):

Must show that you made an investment (time and/or $) into the creation of something that is useful in your trade. Business must take reasonable steps to protect the trade secret. Must show that the misappropriated item was used w/o permission or obtained by wrongful means.

Reverse engineering: This occurs when a business buys a rival business’ product, disassembles it, figures out how to make it and thereafter makes a competing product. One is not liable for misappropriation of trade secrets for reverse engineering. NB: You may be liable if the product manufacturer has a patent, however. Injury – There must be some injury suffered because of the misappropriation.

Trademark infringement:

The business must have a protectable trademark.

Categories of TM:

Generic: Not protectable. When the public starts generically referring to a specific brand name to cover a whole host of products that serve that same need. EXAMPLES: Aspirin; thermos; trampoline; Kleenex; band aid.

Descriptive: Possibly protectable. These are names that do not define the product but describe the product. EXAMPLE: Newsweek magazine.

Suggestive/fanciful: Most protectable. These are names that really have nothing to do with the product itself. EXAMPLE: Xerox; Kodak camera. The TM cannot be illegal/immoral and be protected. EXAMPLE: “The only thing better than our leg in your hand is our breast in your mouth.” – Fried Chicken restaurant.

The TM cannot be misdescriptive. EXAMPLE: “Made in Paris perfume” was made in NJ, not Paris. Because it was misdescriptive, the TM was not protected. The TM can be registered with the U.S. Patent and Trademark Office, but this is not required. NB: Once the U.S.P.T.O. approves the TM, the TM thereafter has a presumption of the TM’s validity. Hence, it is recommended that a business register its TM w/ the U.S.P.T.O. The TM must be used. If not used, you lose the right to the TM. Simply said, use it or lose it.

The appearance and packaging of the product can be a protectable TM. EXAMPLE: Scotch tape.

Even color can be protectable in some instances if they are in the same trade. EXAMPLE: Sugar substitutes – Sweet & Low (pink) and Splenda (yellow).

User sophistication is an element. Does a typical user of this product know the difference between the two different product names or is there a possibility of confusion to the consumer? You must look to the intent of the junior user, to wit: the person using the first business’ TM. Bridging the gap: If it looks like the first user looks to expand into the area where the junior user is using the TM. EXAMPLE: Yale Locks looked to expand into other related hardware like tools. Yale Tools was infringing upon Yale Locks’ TM. Yale Locks’ TM was enforceable because it was reasonably foreseeable that Yale Locks would expand into other hardware-related businesses.

Anti-Dilution Laws: State laws that protect TMs even where there is no likelihood of confusion.

Protection against tarnishment of your TM: Your TM may be tarnished if associated with some unsavory practice. A TM is “tarnished” when an infringing mark portrays the infringed mark in a negative light- usually in the context of sex, drugs, crime, etc. EXAMPLE: Debbie Does Dallas tarnished the TM of the Dallas Cowboys as “Debbie” was a porn actress wearing a Dallas Cowboys cheerleader uniform. However, if it was done to be humorous/parody, then it is not actionable. 

For Example, Jordache Jeans sold jeans to plus-sized people. While this was a use of Jordache’s TM, it was intended to be humorous or a parody. Garbage Pail Kids – Cabbage Patch Kids.

Protection against the loss of uniqueness of your TM: If your TM is so unique that no one else uses this TM in the U.S.A., you have a cause of action against anyone that attempts to use that TM.

Trade dress: Can be Trade Marked. EXAMPLE: Uniforms; bags; ties – all must have an unique characteristic pattern.

by Professor Frank B. Cross 

Defenses To Defamation

Absolute Privileges:

• Judges – A judge can call a defendant a “thief” and is absolutely immune from suit.
• Elected officials – A Congressman can speak freely on the floor of the House of Representatives.
  • NB: Does not extend outside of the legislative chambers.

Qualified privileges:

Public figures: If a public figure, you have to show malice (statement was not only false but was done maliciously). Malice also includes recklessness. So, if a newspaper publishes defamatory information without checking its sources, the newspaper can be held liable for defamation.

Business privilege:

EXAMPLE: Candid statement on employment reference call regarding a former employee. NB: It applies only to the extent of your business purpose. So, you can candidly answer that one reference call, but you cannot start calling other potential employers saying defamatory statements about that former employee.

Public interest privilege:

EXAMPLE: You, believing someone is carrying a weapon and is dangerous, warn someone else when this is, in fact, untrue. You are immunized from suit because you are acting in the public interest.

Privacy and Emotional Distress Torts

Intentional infliction of emotional distress: There must be an extreme and outrageous, intentional action (or action w/ reckless disregard for the consequences).

NB: There must be something more than just words.

EXAMPLES OF EMOTIONAL DISTRESS: Increased anxiety, cannot sleep, having nightmares, and/or PTSD. A reasonable person standard is used. A person who is extremely sensitive is not able to sue when the conduct would not have offended a reasonable person. REMEMBER: There is no negligent infliction of emotional distress.

Invasion of Privacy

Intrusion: You have a reasonable expectation of privacy, and someone intrudes. EXAMPLES: Peeping tom; eavesdropping on someone’s private phone call.

Publicity of private life: When a person publishes non-newsworthy information about another person’s private life, that is an actionable tort. NB: Newsworthiness does not necessarily mean in the news.  EXAMPLE: A woman working at a nuclear power plant passed out while working. The safety inspectors interviewed her because they were concerned about exposure to radiation. The female employee explained that she passed out due to a medical procedure, not radiation exposure. To quell the concern raised by many employees of a radiation leak at the nuclear power plant, the corporate representatives shared with the other employees the circumstances as to why the female employee passed out. The woman was not entitled to sue under this tort.

Misappropriation of likeness: If someone takes your likeness (something identifiable about you – your face or your voice but not your hand or foot, e.g.) and uses it to sell a product without your permission, that is an actionable tort. NB: This does not apply to someone using a picture of your house.

Exceptions:

• If there is a newsworthy matter, the newspaper can use a photograph of the person without his/her knowledge/permission.
• If there is a photograph of that person in the public domain, there is no cause of action.

Product liability: When one is injured by a product (good) he/she purchased from someone else.

When you buy a product from a retailer, the standard is strict liability for the product manufacturer.

You cannot sue if you used a product that is widely known to be dangerous, you purchased the product willingly. All sales of goods come with an implied warranty of merchantability which means that the goods you are buying are of average, acceptable quality for their intended purpose.

Product misuse: If you misuse a product and cause yourself harm, the product manufacturer is not liable. EXCEPTION: If the misuse is reasonably foreseeable, then the product manufacturer will be held liable. EXAMPLE: A person stands on a chair to change a light bulb, and the chair collapses. While it is product misuse, it is a reasonably foreseeable misuse of the chair.

Protective interests:  You are protected from personal injury. EXAMPLE: You buy a defective lawnmower, and it cut off your foot. You are protected from property damage. EXAMPLE: You buy a defective lawnmower, and it careens off and destroys your neighbor’s property.

by Professor Frank B. Cross 

Defenses To Negligence

Comparative negligence: The Plaintiff’s recovery is reduced by his/her proportionate share of liability for the Plaintiff’s harm.

Assumption of risk: The Plaintiff assumed the risk if the Plaintiff: (1) saw the risk was present, (2) saw the implication of the risk and (3) assumed that risk. EXAMPLE: When you go skiing, you sign a waiver, thereby assuming the risk of injury, and you cannot later sue if you are injured.

Implied assumption of risk: Classic case – a baseball fan injured by a fly ball.

Torts Involving Property

Trespass: Any physical invasion of your property.

• This can be surface as well as subsurface (e.g., oil well drilling).
• There is no mistake defense for this intentional tort.
• The trespasser is deemed under the law to have intentionally crossed the property line.
• A trespasser can also be someone who is invited onto your property but overstays his/her welcome and refuses to leave after being asked to leave.
• At the moment he/she refuses to leave after being asked, he/she is deemed to be a trespasser.

 Defenses to trespass:

• Necessity – Sometimes, there is a necessity to go onto private land.
• Public necessity: Go on to someone’s property to protect the safety of a substantial number of people.
• Private necessity: Must trespass to avoid personal

 Conversion: Is the intentional taking of your property. It can be both a crime and a tort. Changing the locks on a home or an apartment is considered a conversion of all the contents inside. Withholding goods from a person who is legally entitled to those goods is also conversion. Remedy: Forced sale = the person who committed the conversion is required to pay FMV for the goods taken.

 Trespass to chattels: Borrowing without permission or for longer than permitted, unwelcome touching or damaging of one’s personal property, not real property.

 Nuisance: Where someone makes an unreasonable interference with your property.

• You can use your property however you want, provided you comply with the law (e.g., zoning) and your use of your land does not unreasonably interfere with the use of your neighbor(s)’ property.
• Even a noxious odor that wafts over from your property to a neighbor’s property can be a nuisance in tort law.
• Intent here requires only the intent to act, not the intent to harm. EXAMPLE: You put up a security light system on your property to protect your person and valuables which shines lights all through the night into your neighbor’s bedroom window, preventing the neighbor from getting any sleep.

 Universal tort defense: consent: (1) express consent or (2) implied consent.

• NB: Consent is limited to the scope of consent. EXAMPLE: If someone loans you their car in NYC to pick someone up from the airport, you exceed the scope of consent if you drive the car to Philadelphia.
• Another defense – “moving to the nuisance.”
  • You know of a hazardous waste site, and you move next to it.
  • You cannot then sue for nuisance, even if it results in a harm to human health.

 Self-defense:

• You cannot kill/harm someone in defense of your property.
• BUT, you can kill/harm someone in defense of your person.

 Emergency exception to intentional torts: Actual consent is not required in case of an emergency. EXAMPLE: A surgeon operates on a person’s heart. While doing so, the person goes into cardiac arrest. The doctor can do whatever he/she deems necessary in order to save the patient’s life, including, but not limited to, additional surgery. The law presumes you would have consented if you were able to do so.

Defamation: (1) Libel and (2) Slander

Libel: When you intentionally write (in writing) “factual” statements (not opinions) you know are not true about a person in order to damage his/her reputation. The more precise the statement, the more the Court construes it as a “factual” statements and not an opinion. EXAMPLE: John Doe is a thief. v. In my opinion, John Doe is a thief.

 Slander: When you intentionally say (verbal) “facts” (not opinions) you know are not true about a person in order to damage his/her reputation.

• NB:
  • The reference to the person who is defamed must be specific to that person.
  • The statement must be false. If it is true or substantially true, there is no Otherwise, there would be no freedom of speech.
  • Substantially true EXAMPLE: You said the person was driving 145 mph. In fact, they were driving 146 mph.
  • There is no defamation if the person defamed is in a one-on-one conversation with the tortfeasor.
    • You cannot defame a person to himself/herself.
    • The statement must be made to a third party.

EXCEPTIONS:

• You cannot defame the dead.
• Saying someone is bankrupt or has filed for bankruptcy, personally or his/her business(es).

CAVEAT: If you said the person was bankrupt and it is not true or if you said it to harm the person’s business reputation, then you have defamed that person.

NB: Things change over time. Saying someone was “gay” in the 1940s would not have been actionable in a Court of law. Now, it would be actionable. Conversely, saying someone was a “Communist” in the 1950s would have been actionable. Now, it would not be actionable.

NB: You will be held liable for merely repeating a defamation you have heard, even if you believe it to be true when you heard it from the tortfeasor. The reason is because you are perpetuating the damaging communication. EXCEPTION: If you repeat it but state that you do not believe it to be true, you are protected from suit.

There is no liability for distribution of defamatory content. So, e.g., the USPS cannot be held liable for delivering a defamatory publication.