Essay

___ 5 Negligence package (duty, breach, causation (foreseeability), damages)

___ 5 Vicky v. EEI contort (failure to comply w/K and regs)—tort duties bk stds set by law re physical safety risks, Mobil Oil Corp. v. Thorn; K language looks like assuming duties re health and safety risks; D argues V. not a party to K, not 3rd party beneficiary , Moch v. appropriate P, since EEI undertook to provide safety services affecting her Palka v. Servicemaster; no reas. care

___ 5 County v. EEI contort (failure to comply w/K and regs)/indemnity: K for services like Southwestern Bell v. Delanney; County’s damages purely economic v. contributory negligence of County (its own crews dumped there); scope of contract risks? Coyle

___ 10 Vicky v. County/EEI Negl. maintenance of dump: Rest. 324A undertaking (clean up, fence warning signs) negl perform., increased risk v. County owed no duty to individuals, Paz v. California, so no negl. undertaking; no special relationship (unless LO-invitee); federal regs provide no private cause of action, so court shdn’t create civil liability Marquay v. Eno

___ 5 Vicky v. County negligent entrustment (entrust EEI with hazardous materials), West American Ins. v. Turner, Vince v. Wilson

___ 5 Vicky v. Grigsons negl. super. Parental immunity/RP 8^th grd freedom to ride bikes Goller

___ 5 Vicky assumed risk: vol. climbed fence and knew dangers of dump even if not toxins

___ 5 County liable for I.C. EEI, D.C. v. Hampton, can’t delegate inh. dang. activity Boroughs

___ 5 County v. Vicky trespass to land (going onto property)/conversion (toys)

___ 10 Vicky v. County/EEI? LO liability attractive nuisance (flowers) = duty ord. care; elements (foreseeable, know or RTK unreas. danger and kids can’t protect themselves); Vicky 8^th grade, 13 or 14, too old/can protect self and read signs; no facts re County’s knowledge whether trespass by kids foreseeable or contamination of sludge but county crews dumped there; no similar incidents mentioned, Posecai, are posted warnings, scalable 4 ft fence reasonable care?

___ 5 source of attraction (flowers & old toys) didn’t injure, toxins did; dump is artifical condition, but may be a socially useful common hazard; are flowers natural or sludge-enhanced?

___ 5 if trespasser, duty only not to willfully injure Gladon unless RTK of danger and trespassers who might encounter or frequent tresp. (county crew members dumped); if ord. care, no duty to protect against open and obvious dangers, like dump O’Sullivan v. Shaw but toxins not visible

___ 5 County/EEI Nonfeasance defense: duty to general public, no special relationship to P, Riss no liability for failure to perform acts for public safety

___ 10 County Immunity defense: dump maintenance prob. operational, not discretionary; no discretion to ignore existing regs, Loge; no conscious judgment Dube was decision in this area susceptible to policy analysis? Gaubert ; was operation proprietary?; EEI can’t claim mantle of immunity (gov’t contractor immunity defense limited to military)

___ 5 Vicky v. County/EEI NIED (toxins); elements: negl., no impact req. Battalla, SED w/physical consequences, Brueckner, Ford v. Aldi (medically diagnosable and significant) v. Molien, no phys. conseq. req. just negl and SED Sacco, Camper; no evidence of SED

___ 5 Vicky v. County/EEI fear of future illness; actual exposure, greater stat. likelihood and reasonable fear, Hartwig v. Kerins, no recovery for future harm, even during “window of anxiety” or m/b more likely than not P will develop serious ailment in future Potter v. Firestone unless oppression, fraud or malice (would racism qualify?). Does V. have fear? Of what illness?

___ 5 Vicky v. County/EEI increased risk: unclear whether risk can be established to reas. degree of medical certainty; damages proportional; V. has present respiratory symptoms

___ 5 Vicky v. County/EEI medical monitoring claim actual exposure, significant increased risk, periodic exams nec. (doc prescribed 1 mo. follow up, periodic unclear), early detection matters

___ 5 Grigsons v. County/EEI bystander NIED not in zone of danger Grube, Dillon, Thing (while close family members, not at scene, didn’t observe injury); no evidence of SED

___ 5 Grigsons v. County/EEI loss of consortium no factual basis; little support for loss of filial consortium, Boucher; derivative claim and no other cause of action

___ 5 Grigsons v. County negl location dump/enviro. racism possible § 1983 = pro. Navarro

___ 5 County Immunity defense: dump placement is discretionary resource decision, Maas v. government has no discretion to act unsafely, Brantley, Trujillo

___ 5 Grigsons v. Lindville negl. admin. (filing, failure to return calls): no causation (bd decided based on $) only damage is 5 wk delay; C/A for unreturned phone calls would snow courts

___ 5 Grigsons v. Lindville prof. (admin?) malprac.: no spec. training, cred. or licens. Kerkman

___ 5 Lindville Nonfeasance, DeShaney, Immunity defenses: but negl. filing a ministerial, not discretionary act and a mere mistake, Harry Stoller, not a conscious decision, Dube; nature of actions (filing and phone calls) not “susceptible to policy analysis” Gaubert; public duty doctrine

___ 5 Grigsons v. DEQ resp. superior: Lindville’s acts w/in scope of her employment, Riviello

___ 5 Grigsons v. DEQ/Quality Control Board negl (decision not to conduct environmental assessment when evidence of violation of federal safety standards) Rest.§ 324A

___ 5 DEQ/QCB Nonfeasance defense: no relationship, action or risk creation or increase; mere filing of complaint not acceptance of plea of help DeLong only promise was review process

___ 5 DEQ/QCB Immunity defense: discretionary decision re resource allocation (cost of assessment $100,000, upscale shopping mall v. better dump) Maas v. review of environmental evidence biological not policy decision Griffin

___ 5 Lindville/QCB argue good faith immunity, absolute for leg. functions, if QCB making policy re env. impacts, even qualified if acting in executive officer capacity Penthouse v. Saba would reas. bd. members have known actions violated P’s const. rights; no evidence of bad faith

___ 5 Discriminatory decisions not protected, Navarro: minority race neighborhood, lack of equal protection v. “cheapest land values” is benign market defense

___ 5 County v. Grigsons trespass (entering dump w/ “no trespassing” signs to get soil samples)

___ 5 EEI/Lindville v. Grigsons intrusion on seclusion (surveillance, photos, soil samples); (intentional act of prying or intrusion, private affairs, highly offensive to RP) Berosini length of time, purpose legitimate exposure of bad practices, photos and soil samples not sophisticated technology, not deeply private facts or highly offensive to RP; all surveillance of public activity

___ 5 Fotiades v. Grigsons intrusion on seclusion (photo urinating in bushes) Birnbaum v. no expectation of privacy in matters open to public view, contra York v. Story but F. hid in bushes

___ 5 EEI/Lindville v. Grigsons/Watson/Grace-Herald public disclosure of private facts: passing pictures on to Watson not sufficient publicity, even if a few others at Grace-Herald saw them, paper did not publish photos; picture on poster paraded on public streets probably sufficient publicity; other facts are not private

___ 5 Fotiades v. Grigsons public disclosure of private facts: same as above on publicity, but are facts private (nudity is private facts, Taylor) or exposed to public? (voluntary “exposure” but urinating in bushes is attempt to claim privacy) motive for this picture seems unrelated to env. concerns v. Fotiades exposed himself and Grigsons’ purpose to show “toxins” in the dump?

___ 10 newsworthiness defense: pub. of private facts of legitimate public interest and lawfully obtained protected Florida Star: health hazards, racism legitimately of public interest; a defense (maj.) Cape Publications v. Bridges, Rest. (min.) P must show lack of newsworthiness; Diaz test (social value of fact published; depth of intrusion into private affairs; voluntariness of P in agreeing to position of public notoriety); photo of Fotiades not newsworthy; N/A to false light

___ 5 EEI/Lindville/Fotiades v. Grigsons defamation libel (poster) and slander (conversations); elements (defamatory language, of or concerning, publication, falsity)

___ 5 EEI/Lindville/Fotiades v. Grigsons false light (poster): showing accurate facts and photos in context of racism and health accusations; reckless disregard for falsity re racism, since decisions made for economic reasons, but federal health regs violated

___ 10 DEQ/EEI/Lindville v. Watson/Grace-Herald defamation (racism, official neglect): are accusations of racism defamatory? Ward v. Zelikovsky (no), Herlihy v. Metropolitan Museum of Art (yes), Ps will have to prove falsity of official neglect and racism (misfilings are negligence, but not intentional neglect; location and decision not to conduct env. assessment for economic reasons; violation of federal safety standards is truth of health hazards, but not necessarily racism); corp. & pub. entities’ reputation damages?

___ 5 Lindville not public official or public figure, Jenoff, (no control of government affairs or discretionary or policy-making authority (Quality Control Bd. decides env. assessment issues), no access to media (only one prior interview), private person, matter of public concern, but no seeking of media attention, Street; std. is probably negl. re falsity, Gertz

___ 5 DEQ public entity with control of gov’t affairs and policy-making authority, are media reports access?; EEI unknown but no facts re pub. off or figure other than contracting with public entity; public offical std. is malice N.Y. Times (knowing falsity or reckless disregard re truth)

___ 5 was Watson negligent or did she act with malice? Watson researched and left 2 messages w/Lindville, but seems like she built story line on single source

___ 5 Lindville m/prove colloquium for “of and concerning”: not by name, but “admin. refused to investigate”; RP could associate her w/ “admin.”, Bindrim, but it could refer to DEQ instead

___ 5 Lindville slander per se (affects occupation, states general qualities); distinction between statements about people and ideas, Chastain; if not per se, what are her damages?

___ 5 DEQ/EEI/Lindville v. Watson/Grace-Herald false light: public dispute affects offensiveness inquiry Lane

___ 5 DEQ/EEI/Lindville v. Watson/Grace-Herald NIED Sacco but Boyles v. Kerr limits

___ 5 Defense fair comment (matter pub. concern, facts m/b stated accurately)/pub interest priv.; Neutral report priv. N/A (editorial, comments not by prominent person about public figure)

___ 5 first amendment opinion privilege Moldea, esp. for political commentary: context is crucial; hyperbole expected in op-ed pieces; possibly just opinion, but is it a supportable interpretation of facts?

___ 5 Grace-Herald resp. superior for Watson, its columnist v. I.C. D.C. v. Hampton

___ 5 Organization (captions, defenses clearly separated, BOP)

___ 10 Innovative arguments/thorough analysis

___ 10 Complete sentences/clear writing 300 total