Torts outline part 2

8/20/2019 Torts outline part 2

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I. Definition of a tort:

a. a civil wrong other than a breach of contract for which the law provides aremedy. It is an area of law that imposes duties on persons to act in a

manner that will not injure other persons ( most states have adopted the 2nd

/3rd

estatement of !orts as a model rule" b. purposes of tort law:

i. to provide a peaceful means for adjusting the rights of parties who

might otherwise # ta$e the law into their own hands%ii. to deter wrongful conduct

iii. to encourage socially responsible behavior

iv. to restore injured parties bac$ to their pre&injury positions ( to the

e'tent that this can be done through compensation for injurieds"v. to vindicate individual rights of redress

vi. to promote the widespread distribution of losses by encouraging

individuals to purchase insurance

c. !wo possible theories for tort law:i. riginated with imposing liability based upon actual intent and

person culpability and later evolved into liability that was non&fault base

ii. !ort law originated with imposing liability based on the causing of

physical harm by the D irrespective of fault (e': strict liability" andlater evolved into imposing liability based upon fault ( personal

culpability"

d. 3 basis for imposing tort liability

i. intentional conductii. negligent conduct

iii. strict liability ( conduct is neither intentional nor negligent"). a.$.a # no fault% or #absolute liability%a. animals

b. abnormally dangerous activities

c. productsII. Development ton *trict +iability

a. ,nimal- ,bnormally Dangerous ,ctivities and +imitations

i. eneral:

). +iability: dependant on those who $eep- possess and harbor animals may be held liable or responsible for injuries

caused to persons or property

2. olicy: liability is imposed due to the abnormal nature ofthe animal and/or danger posed by the animal to the

particular community

a. ,nimal poses some $ind of an abnormal ris$ to the particular community where it is $ep

ii. 0ild animals

)


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). Definition: an animal that is not customarily devoted to the

service of man$ind at the time and in the place where the

animal is being $ept wtf does this mean r. 1

2. eneral rule:

a. +andowners are not responsible for harm done by

wild animals on their property b. 4'ceptions:i. +andowner reduced the animal to

possession

will be held strictly liability for

injuries cause by the animal due to

attac$s on a person or animals ofanother

ii. +andowner introduced a non-indigenous

animal into the areaiii. 4':

). +ions- tigers- bears-elephants- wolves-mon$eys- deer- fo'es

3. 5ey factor:

a. !he type of animal subject to strict liability is onethe poses some type of abnormal ris$ to the

particular community where the animal is $ept

i. !est:

). 6as the owner e'posed a person or the community o

an abnormal ris$ of harm7

a. 8ote should it matter if theanimal is viewed as #wild% or

#domesticated%

iii. Domesticated ,nimals). Definition: an animal that is customarily devoted to the

service of man$ind at the time and in the place where the

animal is being $ept .1

a. 4':i. 9attle- horses- sheep- pigs- goats- chic$ens-

dog indicate

2. 9ommon law rule for trespassing animals and injuries toland

a. ule: if animal is viewed as li$ely to trespass the

owner was held strictly liable for trespasses to landi. 4':

). arnyard animals&cattle-

horses- sheep- pigs- tur$eys-chic$ens- pigeons

ii. 4'ceptions:

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). ,nimals straying from a

highway on which they

were lawfully being driven2. 9ats/dogs

b. ;encing In/;encing ut *tatutes

i. ;encing In: re


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b. +ac$ of provocation by the

c. eaceable conduct of the

person injuredd. person injured in place where

they have a legal right to be

b. ,bnormally dangerous activity (=ltra ha>ardous is a limited definition thatwas used before ,D,"

i. ?odern rule: estatement *ection 1)@/12

). 1)@:a. one who carries on an abnormally dangerous

activity is subject to liability for the harm done to

the person- land- or chattles of another resulting

from the activity- although he has e'ercised theutmost care to prevent the harm

b. . 12: test for abnormally dangerous activity

analysis

i. 4'istence of a high degree of ris$ of someharm to the person land or chattle s of others

ii. +i$elihood harm that results from it will begreat

iii. inability to eliminate the ris$ by the

e'ercise of reasonable care ( mostcontrolling factor"

iv. e'tent to which the activity is not a matter of

common usage

v. inappropriateness of the activity to the place where it is carried onA and

vi. e'tent to which its value to the community

is outweighed by its dangerous attributes). note:

a. one is not sufficient but all

are not necessary b. an activityBs


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ii. transportation and

storage of to'ic

chemicals andinflammable li


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the from that which would have made the

actors conduct negligent

). ( harm that could not have been prevented by the

e'ercise of due care"

c. ule: even when the DBs activity is subject to strictliability ( participating in abnormally dangerous

activities" the DBs will not be liable for those

injuries caused by an #act of od% or and #actnature% which D could not have anticipated

i. 4': hurricanes- floods- earth


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). 4': when D misperforms

the 5

2. If the DBs actions constitutemisfeasance- then the

possibility of recovery

under tort law is greatlyincreased. rivity of 5

would not be a bar from

recoveryii. 8onfeasance: inaction or a failure to ta$e

steps to protect Bs from harm.

). where there is only the

promise to do somethingand the breach of that

promise

2. rivity of 5 is a $ey factor

3. If the DBs actions constitutenonfeasance- then

historically- the 5 actionwould lie and no tort action

could be maintained

iv. 0arranty). Definition: a promise or agreement by the seller that an

article sold has certain


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purpose for which the seller has reason to $now that

it is re


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the injured persons who are powerless to protect

themselves ( easing burden on "(reenman"

3. !est to prevail under *trict +iability: (reenman"a. must prove they were:

i. Injured while using the product in a way that

it was intended to be usedii. !he injury was a result of a defect in the

design of the product

iii. !he was not aware of the defect b. . C2,:

i. ne who sells any product in a defective

condition unreasonably dangerous to the

user or consumer or to his property issubject to liability for physical harm thereby

caused to the ultimate user or consumer- or

to his property if:

). the seller is engaged in the business or selling such a

productA and2. it is e'pected to and does

not reach the user or

consumer withoutsubstantial change in the

condition in which it s sold

a. note:

i. this rule still applieseven if the seller has

e'ercised all possible

care in the preparationand sale of his

product

ii. the user or consumerhas not brought the

product from or

entered into any

contractual relationwith the seller

3. product must be defective

at the time it leaves the?anufacturer or the seller

C. applies to any person

engaged in the business ofselling products for use or

consumption:

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a. e': manufacturer- whole sale

or retail dealer distributor-

and the operator f a restaurantC. , product can be defective in 3 ways: .C2(,"

a. ?anufacturing:

i. Definition: when the product departs fromits intended design even though all possible

care was e'ercised in the preparation and

mar$eting of the product). flawed b/c it was

misconstrued or a result

from some mishap in the

manufacturing processitself. i.e. improper

wor$manship

ii. !est:

). roduct is evaluated againstthe manufacturers own

product standards.( products of the same

design

b. Design:i. Definition: when the foreseeable ris$s of

harm posed by the product could have been

reduced or avoided by the adoption of a

reasonable alternative design by the seller or other distributor- or a predecessor in the

commercial chain of distribution- and the

omission of the alternative design rendersthe product not reasonably safe

). Imperfections/ problems in

the deign of the product( blueprint"

ii. olicy:

). !he victims injured by

defective products should be compensated for their

injuries without being

subject to the contractualintricacies of the law of

sales

2. !o encourage the design ofsafer products this reducing

incidents of injuries

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iii. =niform roducts +iability ,ct : adopted a

negligence/ fault system in determining

design defectsiv. !est to determine design defects:

v. is$ utility alancing test

). Design is defective whenthe ris$ of harm outweighs

the utility of the design

2. ;actors:a. =sefulness and desirability of

the product its utility to the

user and to the public as a

whole b. !he safety aspects of the

product which would meet

the same need and not be as

unsafe (alt.designc. !he manufacturers ability to

eliminate the unsafe character of the product without

impairing its usefulness or

ma$ing it too e'pensive tomaintain its utility

d. !he users ability to avoid

danger by the e'ercise of care

in the use of the product andtheir avoidability because the

general public $nowledge of

the obvious condition of the product or of the e'istence of

suitable warnings instructions

e. ;easibility on the part of themanufacture of spreading the

loss by setting ht price of the

product or carrying liability

insurancevi. 9onsumer 4'pectations about the product

). Does the product meet the

ordinary/ reasonableconsumers e'pectations for

the safety of the product7

2. *tandard: must introduceevidence that demonstrates

that the product dialed to

perform as safely as an

ordinary/reasonable

))


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consumer would e'pect

when using the product in

its intended or reasonablyforeseeable manner.

vii. is$&utility and consumer e'pectations

viii. *tate of the ,rt Defense:). Definition: referring to the

e'isting level of

technological e'pertise andscientific $nowledge

relevant to a particular

industry at the time a

product is designed2. Defense: evidence that the

product is in conformance

with # state of the art%

technology and informationat the time of the

manufacture of the productcan show that th no better/

or alternative design was

available at the time the product was designed

c. 0arning (information": when the foreseeable ris$s

of harm posed by the product could have been

reduced or avoided by the provision of reasonableinstructions or warnings by the seller or other

distributor or predecessor in the commercial chain

of distribution- and the omission of the instructionor warnings renders the product not reasonably safe

i. 6op$ins rule: product poses an unreasonable

ris$ of harm/danger to a consumer can often be made safe by including an ade


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( typeface of font- si>e-

color"

2. Does the warning tell of theha>ards or dangers of the

product7 ( loo$ at the

e'pressed language "3. Does the warning inform

the use as to how the

product can be used safelyin the order to avoid the

ha>ards and dangers7

( e'pressed langauge"

iv. *tate of the art design). Defense: evidence that the

particular ris$ was neither

$nown nor $nowable by the

application of scientific ormedical $nowledge

available at the time of themanufacturer and or the

distribution of the product

a. D must have actual andconstructive $nowledge of

the potential ris$ or danger of

product b/f strict liability is

imposed must show this

1. ,nalysis of product liability:

a. 0hatBs the tort at issue7 0hat are the policies behind strict liability7

b. 9an establish the prima facie elements for strictliability (. C2,"

c. does the defendant have a defense7

. !est:a. D must be the manufacture or the seller of the

product

b. !he product must be defective at the time it wassold by the D ( manufacturing- design- warning"

c. !he product must reach the consumer without

substantial changes in its conditions

d. !he defective condition of the product must be thecause ( pro'imate/actual" of the pBs injuries

. roof:

a. Direct:i. demonstrative ( tangible the actual defective

product after the incident"- probable cause of

accident

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ii. witness testimony (eye witness/e'perts"

iii. state of the ,rt

b. Indirect: circumstantiali. 9ommon $nowledge& the happening of the

event- evidence of injury occurring in the

course of or following use of productE. eneral Defenses to roducts liability:

a. ,ttac$s on the prima facie elements

b. roduct alterationc. Design alteration

d. Design defects #state of the art%

e. Information defects # state of the art%

f. laintiffs contributory negligence(complete bar atcommon law"

g. 9omparative fault

i. ;orms

). urea. ?anufactures relieved from

strict liability if has beencontributory negligent. Bs

negligence must rise above

the level of being #assumption of the ris$

2. ?odified

a. Furisdictions that follow the

#no greater than thedefendant% approach (1G or

lower and the # not as great

as the defendant% approach(C@G or lower"

ii. ecoverH total damages minus Bs G of

fault). H!D&G

iii. olicy:

). rinciple of protecting the

defenseless is also preserved/ pBs recovery is

reduced only to the e'tent

that the pBs own lac$ ofreasonable care resulted in

their injury

h. roduct misuse ( foreseeable/unforeseeable misuse"i. ?anufacturer is not liable for injuries

resulting from the abnormal or unintended

use of the product if such use was not

reasonably foreseeable

)C


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ii. !hey are liable for injuries caused from the

abnormal or unintended misuse of the

product if the misuse is reasonablyforeseeable

III. ?isrepresentationa. Defintion:

i. , false representation of a fact

ii. olicy:). !o protect persons from relying upon false information in

business and personal dealings

2. !o protect the intangible economic interests of persons who

are induced to enter into bargaining transactionsiii. ;orms

). 8egligent misrepresentation

2. ;raudulent misrepresentation

iv. ,nalysis). 0hatBs the tort to be considered7 0hat are the polices

behind the tort of misrepresentation72. 9an the plaintiff establish the prima facie elements for this

tort7

3. Does the defendant have a defense7v. 9oncealment and 8on&disclosure

). 4lements of misrepresentation

a. , false representation or concealment of a material

fact b. !he representation is made to the or a 3rd party

with the purpose or goal of inducing the to act or

to refrain from acting on the representationc. relies on the representation

d. reliance is reasonable or justified

e. suffers pecuniary losses as a result of his or herreliance on the representation or concealment of a

material fact

2. *ome factors considered by courts

a. !he uttering of a half truth by the defendant b. any actions on the dBs part to prevent or stop the

from ac


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a. e':

i. principle/ agent

ii. atty/clientiii. physician/ patient

iv. priest/ parishioner

v. partnersvi. tenants in common

vii. husband/wife

viii. parent/childi'. guardian/ward

1. certain types of contractual relationships at commons law

a. those of suertyship and guaranty- joint adventure- or

insurance- were recogni>ed as in themselvescreating or involving something of a confidential

relation- and hence as re


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c. the representation is made to the plaintiff or a 3rd

party with purpose (or goal" of # inducing% the

plaintiff to act or to refrain from acting on therepresentation

d. the plaintiff relied on he representation

e. the plaintiffBs reliance is reasonable or justifiedf. the plaintiff suffers a pecuniary loss as a result of

his or her reliance on the representation or

concealment of material facti. this defense will fail when:

). when the belief is destitute

lac$ing of all reasonable

foundations2. the person ma$ing the false

statement representation

has shit his eyes to the facts

3. had purposely decided notto in


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types of statements will not constitute grounds for

an action in misrepresentation7

NOTE: review termite infestation dilemma

(traditional and modern viewpoints" and

cases where statements made do notconstitute misrepresentations.

2. Disclosure: situations and circumstances (i.e.relationships" may re


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ii. !hree different approaches ta$en courts to evaluate liability to

third parties that rely on misrepresentation:

). 9redit alliance (majority"a. ule: liability to 3rd parties for misrepresentation

may be impose when the parties (defendant and 3rd

parties" are in privities or in relationships so closeas to approach privity

i. ;actors for establishing a #relationship%

). 0hen D at least $nows the purpose for which ( the

document at issue" to be

made

2. 3rd partyBs relianceBs on JJJ 3. ne'us of relationship b/tw

the parties

2. 9iti>ens an$

a. +iability to 3

rd

parties is imposed for all foreseeableinjuries resulting from the defendants negligence act

(e'cept as limited by public policy(e': remoteness-injury out of proportion to the defendants culpable

act-etc."

i. ublic policy factors). emoteness( injury too

remote from the

negligence"

2. roportionality ( the injuryis too wholly out of

proportion to the culpability

of the negligent tort feasor 3.

3. estatement *econd ,pproach(minority"

a. +iability to 3rd parties is imposed only for a limitedgroup of 3rd parties who are e'pected to gain access

to the financial statement information in an

e'pected transaction

d. eliance

i. 5ey points:

a. must rely on the false representation orconcealment of a material fact

b. Bs reliance must be justified (e'. easonable"

ii. where reliance is not justified). ule: obviously false

a. ne cannot justifiably rely on obviously false

statements.

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b. 9ourts will refused to act for the relief of a person

claiming to have been misled by anotherBs

statements- blindly acts in disregard of $nowledgeof their falsity- or in disregard of reasonable

opportunity to discover the falsity

2. ;actors court consider in determining whether the falsitywas obvious or could have been detected by ordinary

observation7

a. !he relationship between the parties (e': fiduciary" b. !he intelligence and life e'periences of the misled

party

3. ule: ,n opinion

a. pinions are not fraudulent because they fo notordinarily deceive or mislead. !hey are statements

that are vague- indefinite in their nature and terms-

loose- conjectural- e'aggerated

b. pinions are not statement of material facts%C. ;uture predictions:

a. enerally not liable1. ule: *tate of ones mind

a. enerally- a person is not justified in relying on an

opinion b. #puffing% a subset of opinion or %trade tal$% are the

types of statements that no reasonably person ta$es

seriously

. ule: ?isrepresentations of lawa. enerally one is not justified in relying on

misrepresentations of law or misrepresentations as

to matters concerning the law. !wo rationales:

a. everyone is held to $now the law

b. no one without special training- is e'pect to $nowthe law..

E. e'ception:

a. a representation or legal opinion given by an atty or

judgee. Damages

i. eneral point:

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ii. must suffer pecuniary damages as a result of his or her reliance

on the misrepresentation

f. ,pproaches used by the court to determine damagesi. ut of poc$et loss theory (tort recovery"

). ;ormula

a. ecovery H price paid& the value of good at thetime of sale

i. 9an get at anytime

ii. enefit of the bargain rule ( contract recovery"

). ;ormula

a. ecoveryH value of the ood as represented K the

value of the good at the time of salei. LL loo$ for e'amples on ecommons

IM. Defamation

a. eneral verview

i. Definition). Defamation& a communication that tends to damage the

plaintiffBs #reputation% more or less in the popular sensea. 4.gH to diminish the respect- good will- confidence

or esteem in which the plaintiff is held in the eye of

others- or to e'cite adverse or unpleasant feelingsabout the plaintiff

ii. rotected interest

). rovide protection against injury to your reputation and

good nameiii. 4lements/ test

). , false statement

2. #of and concerning% the plaintiff 3. a publication of the false statementA

C. injury to reputation

a. suffers a loss of esteem in the eyes of another- orthe false statement about the deters 3rd persons

from associating or dealing with the plaintiff

iv. !ypes of defamation

). +ibel (printed/written"2. *lander (oral"

b. !he role of the Fudge and Fury

i. It is the role of the ct to determine )st whether the words arereasonably capable of a particular meaning

ii. !he jury should determine- if- within the conte't of the statement-

the words would be understood by others as being defamatory). asic ules:

a. If the statement has no defamatory meaning

whatsoever- the court can dismiss the case for

defamation as a matter of law

2)


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b. If the statement bears only one meaning and the

meaning is defamatory- it will be left for the judge

to determine if the interpretation of the statement isdefamatory

c. if the statement carries the possibility of two

meaning ( one defamatory- the other non&defamatory"- the court must pass the statement ton

to the jury to determine which of the two meanings

would be attributed to the statement by those towhom it is addressed or may read it

2. 4valuation:

a. ,re the alleged statements concerning the libel/

slander7 b. 0hat is defamation as defined by the statute7

c. 6ow will the court evaluate a defamatory

statement7

i. 4':it will be evaluated in light of theconte't it will be construed in a way in

which ordinary persons would understand it

3. *tandard for determining whether the meaning of astatement is defamatory

a. ,s long as someone who hears the statement thin$s

loses respect or esteem for the plainttiff- then therewill be injury to the - even if they are members of

the #non politically correct or non&law abiding

group"c. !he defense of truth

i. !ruth is an affirmative defense to a defamation actionii. !o support defense- the D only has to prove that the statements

made about the plaintiff are #substantially% trued. leading

i. 4lements

ii. 9ollo


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class is referred to- then any individual

member can sue

). ationale: *uch a generalcondemnation could not

reasonably be regarded as

referring to each individualor any particular individual

within the group

iii. 4'ception: even If the group is large- a

member of the group may have a cause of

action for defamation if he/she can

demonstrate that some circumstance (facts" points to him or her as the person defamed

iv. .1C,: #one who publishes defamatory

content concerning a group or class of

persons is subject to liability to an individualmember of it if- but only if-

). !he group or class is sosmall that the matter can be

reasonably understood to

refer to the member- or 2. !he circumstances of

publication reasonably give

rise to the conclusion that

there is a particularreference to the member

i. roups that are

generally successfulin pursuing group

libel action number

21 or less b. 0or$s of ;iction

i. !he fictional setting or label will not shield a

defendant from defamation when a

reasonable person would understand that thecharacter was a portrayal of the plaintiff

ii. ;or purposes of defamation actions- when

the is not identified by name- the test fordetermining whether a fictional character in

a boo$ is the plaintiff is:

). 0hether a reader with$nowledge of the

surrounding circumstances

could have reasonably

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understood that the words

referred to the .

2. It is not important that allreaders be able to indentify

the statement as being

about the . ,ll that isnecessary is that one person

can indentify the statement

as being about the plaintiff f. +ibel and *lander roadened

). +ibel (printed or written"

a. 9ommon law rule:

i. !reated as #per se%actionable without

showing injury to reputationA presumed

injury to reputation

b. 4'pansion of definition:

i. !he term has been broadened to includethings communications by the sense of sight

c. .1E

i. +ibel consists of the publication ofdefamatory matter by written or printed

words or by its embodiment in physical

form- or by any other form ofcommunication with has the potentially

harmful


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transitory gestures- or by any form of

communication other than those stated in

*ubsection )g. Defamatory roadcasts and *lander er *e

i. roadcasts

). ule: the utterance of #ad&libbed% defamatory remar$smade over the radio airwaves should be treated as a libel.

!he spea$ing of these words over the radio airwaves is

potentially as harmful to a defamed personBs reputation aswould publishing the words in writing

a. easonable to presume damage

ii. *lander er se

). *tatements of major crimes(e': crimes of moral turpitude"Aa. 9rimes of ?oral !urpitude

i. ?oral turpitude is personal conduct which

goes against public morals. enerally crimes

that violate community standards n additionto the law

). 4': murder- fraud- rape-arson- robbery- and

counterfeiting

ii. # such conduct is regarded as a blac$ mar$against someoneBs reputation- and may cause

problems in the future after conviction%

). e': employment

opportunities or activities2. +oathsome disease (e': leprosy"

3. usiness- trade- profession or office (doctors- lawyers-

ban$ers- mayor"C. *erious se'ual misconduct of a female

h. +ibel per se and +ibel per quod

i. Definitions:). +ibel per se: at common law- all libels were #per se%

(actionable without having to demonstrate injury to

reputation".

2. +ibel per quod : term used when a libel- defamatorystatement in writing- is not defamatory on its face and

re


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). suing for defamation must allege in the complaint and

prove (at trial"- that the false statement concerning him or

her was published.2. In order to be actionable- the defamatory speech must be

communicated to someone other than the

3. ,dditionally- the person hearing a slander must understandthe meaning of the language

a. e': when the statement is in a foreign language

iii. *ingle publication rule:). !he publication of a boo$- periodical- or newspaper

containing defamatory matter gives rise to only 84 cause

of action for libel- which accrues at the time of the original

publication2. I+ ule and *tatute of +imitations

a. 31 I+9* 1/)3&2)

i. #actions for slander- libel or for publication

of matter violating the right of privacy- shall be commenced within one year ne't after

the cause of action accrued% b. C I+9* )1/)

i. # no person shall have more than one cause

of action for damages for libel or slander orinvasion of privacy or any other tort founded

upon any single publication or e'hibition or

utterance- such as any one edition of a

newspaper or boo$ or maga>ine or any one presentation to an audience or any one

broadcast over radio or television or any one

e'hibitions of a motion picture. ecovery inany action shall include all damages for nay

such tort suffered by the plaintiff in all

jurisdictions.%iv. Defamation and the internet

). ule:

a. !he 9ommunications Decency ,ct (C =.*.9. 23

(b"()"-(2" and (C"i. # no provider or user of an interactive

computer service shall be treated as the

publisher or spea$er of any information provided by another information content

provider

ii. the statute provides immunity from liabilityfor a Interactive 9omputer *ervices/ Internet

*ervice roviders- that publish

(communicate" false or defamatory material

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so long as the information was provided by

another (e': 3rd party" and not the publisher

). to receive immunity- the publisher cannot be an

Information 9ontent

rovider for the defamatorystatement/ or speech at

issue

iii. if the publisher (Interactive 9omputer*ervice" in a content provider- then the

publisher can be liable for defamatory

statements about the plaintiff that are posted

on its website2. ublic olicy

a. !o promote the free e'change of information and

ideas over the internet (e': to promote the continued

development of the interest" b. !o encourage voluntary monitoring for offensive or

obscene material j. rimary and *econdary ublishers

i. rimary/ riginal: newspapers- boo$ publishers- maga>ine

publishers). 9ommon law practice:

a. rimary publishers were subject to strict liability

for defamation- even though the publisherBs may

have innocently ta$en the defamatory materialsfrom someone else- without notice that the materials

contained defamation

i. 8ote: .1E)(a" broadcasting stations (e':television and radio" should be treated as

original or primary publishers for

defamation purposesii. *econdary publishers: a vendor- or distributor of a news paper-

maga>ine- or boo$ is considered a #secondary publisher% at

common law- a secondary publisher is not strictly liable for

defamation contained in publications that it sold- of it had noreason to be put on guard or notice that its publication contained

defamatory materials

iii. Internet services: prior to the adoption of the communicationsdecency act- internet service providers (e':,+- Nahoo- etc." were

classified as secondary publishers

$. ;irst ,mendment olicies& ;ault *tandards&?atters of ublic 9oncerni. =.*. 9onst. ,rt. MI- 9l. 2

). !his constitution- and the +aws of the =nited *tates which

shall be made in pursuance thereofA and all treaties made-

2


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or which shall be the supreme +aw of the +andA and the

judge in every *tate shall be bound thereby

ii. =.*. 9onst. amend. I). 9ongress shall ma$e no law respecting an establishment of

religion- or prohibiting the free e'ercise thereofA or

abridging the freedom of speech- or of the pressiii. =.*. 9onst. amend. O

). !he powers not delegated to the =nited *tates by the

constitution nor prohibited by it to the *tates-are reserved tothe *tates respectively- or to the peropel

iv. ,nalysis

). 9an the establish the common law test for defamation

2. Does the D enjoy a defense or privilege7 4': truth3. are there )st amendment concerns in the problem7

a. Is the defamatory speech protected under the )st

,mendment7

v. ;irst ,mend. ;actors). laintiffBs *tatus: rivate/ ublic

2. DefendantBs *tatus: (rivate/?edia"3. Defamatory *peech ( ?atter of ublic 9oncern/ rivate

9oncern"

vi. Important *upreme 9ourt Decisions). 8N !imes v. *ulluvan

2. ert> v. obert 0elch

3. Dun P radstreet

C. hiladelphia 8ewspapers- Inc. v. 6eppsvii. 9onstitutional ;ault e #negligence% standrd ( when to

accommodate any state interest involved (e': private plaintiffs"

viii. ;irst ,mendment ;ault *tandards

2E


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). ,ctual ?alice (8N !imes" 8egligence (ert>"9ommon

+aw resumed Damages/ unitive Damages 0hen no ;ederal

Interests are resent (Dun P radstreet"i'. ?atters of ublic 9oncern

). ule: # the commission of crime- prosecutions resulting

from it- and juridical proceedings arising from the prosecutions- however- are without


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$nowledge that the speech was false or with

rec$less disregard of whether it was false or not

b. #actual malice% can be demonstrated by showingthat statement about the plaintiff was made with:

i. $nowledge that it was falseA or

ii. with rec$less disregard of whether it wasfalse or not

iii. ec$less disregard:

a. ec$less conduct is notmeasured by whether a

reasonably prudent man

would have published or

would have investigated before publishing

b. !here must be sufficient

evidence to permit the

conclusion that the defendantin fact entertained seriousdoubts as to the truth of his publication (e': high degree

of awareness of probable

falsity"c. the evidence submitted to demonstrated actual

malice must meet the #clear and convincing%

evidence standard rather than the preponderance of

the evidence standard for most tort cases.i. 4vidence that- when weighed against

evidence in opposition- will produce in the

mind of the trier of fact a firm conviction asto each essential element of the claim and

high probability as to the correctness of the

conclusionii. proof by clear and convincing evidence

re


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a. Individuals who have achieved pervasive fame or

notoriety so as to become a public figure for most

purposes and in most conte'tsi. 4'amples: renown families such as the

5ennedyBs- the oyal ;amily (4ngland"

celebrities- sports athletes- etc.2. +imited

a. Moluntary : individuals who have voluntarily

injected themselves into a public controversy inorder to influence the resolution of the issue

involved.

i. 4'ample: the guy lea$ing classified

information from the 8ational *ecurity,gency to the press

b. Involuntary. !hose persons who have been thrust

into a controversy/public eye through no purposeful

action of his or her own (e': thrown into acontroversy due to a relationship with another.."

i. 4': mel gibsons wife in their divorce action). ichard Fewell arrested of

the )@@ lympic bombing

iii. ule:a. the constitution guarantees re


32/40

). whether speech addresses a matter of public concern must

be determined by the (e'pressionBs" content- form- and

conte'ta. content

i. the nature/subject matter of the speech (e':

credit report of a private business" b. form

i. credit reports are generally private

documentsc. conte't

i. the credit report was sent out to 1 DP

subscribers"

v. ,nalysis:). Is plaintiff public or private7

2. Id the defendant a media or non&media defendant7

3. Does the speech that involve a # matter of public concern%7

C. 0hat does the =.*. 9onstitution re- hiladelphia 8ewspapers" provide sufficient protection for false statements that

constitute opinion

a. !he )st amend. Does not mandate a specific and

separate in


33/40

). ,t common law- the burden of establishing truth was on the

defendant. Defendant only had to establish #substantial

truth%a. !ruth is not a defense when the )st ,men.

rotections (gert> P n.y. times rules" apply.

b. 0hen )st

amend. 9oncern are present- the plaintiffwill have the burden of establishing fault "%actual

malice% or #negligence%.

i. !he will have the burden of establishing#falsity% (4': that the alleged defamatory

statements about him or her are false" when

the plaintiff sues the media defendant

ii. pinion). pinion can be a defense to a defamation action but may

also be actionable under defamation law.

a. ;or e'ample- e'pressions of opinion may often

imply an assertion of objective fact.iii. rivileges

). , peculiar right- advantage- e'emption- power- or immunityheld by a person or class- not generally possessed by others

2. 9ommon law privileges:

a. ;air comment:i. ,t common law- prior to 8N !imes- the

courts had developed ( without reference to

the constitution"- a privilege of criticism of

public officers and their official conduct."). , majority of courts held

the privilege was limited to

the e'pression of opinion-and not misstatements of

fact

2. It was an affirmativedefense. It afforded

immunity for the honest

e'pression of opinion on

matters of legitimate publicinterest when the

commenting was based on

true and privilegestatements of fact.

i. It protected

statements of opinion.!he privilege was

used to stri$e the

balance between the

need for vigorous

33


34/40

public disclosure and

the need to protect

against injuries toreputation

iv. eporterBs privilege:

). ,t common law it was a privilege that e'empted adefendant from liability if his/her report of defamatory

speech was verbatim or a fair and accurate summary of

official proceedings in the public interest- been though thedefendant spea$er was at fault for defamation

2. Initially- the privilege protected the reporting of all official

proceedings in the public interest (e': sessions of

legislative committees- juridical proceedings."3. !oday- it has been e'tended to now include: reports filed by

officials in the performance of their dutiesA information of

public concern uttered at public meetings- etc."

v. ,bsolute P 9onditional rivileges). ,bsolute:

a. Fudicial proceedingsi. ,n absolute privilege will apply to

participants in judicial proceedings as long

as the statements made are pertinent andrelevant to issues in the litigation.

ii. Judges have an absolute privilege

(protection from civil liability" for

defamatory words published in the course of judicial proceedings

iii. Attys are protected for defamatory words

made during the course of a judicial proceeding- if relevant and pertinent to the

issues in the litigation

iv. Witnesses are e'tended the privileges eventhough they voluntarily testify

v. Pleadings. Defamatory statements in

pleadings are covered

b. +egislative proceedingsi. ,n absolute privilege will apply to members

of congress and of the state legislatures- in

the performance of their legislativefunctions.

). ;ederal and state

constitutional provisionshave been construed to

e'tend the privilege to

anything whatever said in

3C


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the course of the

proceedings

ii. ?embers of congress and state legislatureswhile in the performance of their legislative

functions

iii. 6earings of a legislative bodyiv. 0itnesses testifying before legislative body

c. ublic officials

i. ,n absolute privilege will apply to publicofficials in the performance of their official

duties

). 6igh ran$ing federal

e'ecutive branch officers.Immunity is afforded to

high ran$ing federal

e'ecutive officers (e'.

9abinet officials" fromdefamation liability while

acting as their dutiesre


36/40

communicated and receive it. (e': letters of

reference"

c. 9onditional privilege is defeasible: it can be lost ifnot e'ercised properly (e': the communication is

outside the purpose of the privilege"

i. rivilege must be e'ercised in a reasonablemanner and for a proper purpose

ii. rivilege will be forfeited if the defendant

steps outside of the scope of the privilege- or abuses the occasion

). 4': publication to persons

other than those whose

hearing of the speech isreasonably believed to be

necessary or useful for the

furtherance of the common

interest between spea$erand receiver

3. ;actors to consider in determining if the spea$er has abusedthe privilege:

a. !he DBs reasonable belief in the truth of the

statementA b. the e'cessive nature of the language usedA

c. whether the disclosure was unsolicited

d. whether the communication was made in a proper

manner and only to proper partiesC. a defendant cannot claim a


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public. (protection of plaintiff from being made to appear to

public in a position otherwise than as the plaintiff actually

is."2. 124

a. ne who gives publicity to a matter concerning

another that places the other before the public in afalse light is subject to liability to the othe rfor

invasion of his privacy if

i. !he false light in which the other was placedwould e highly offensive to a reasonable

person

3. 4lements:

a. *tatements- comments- implications about the plaintiff (false"

b. ublication (made public"

c. lacing plaintiff in a false position in the eyes of the

public (e': attributing to plaintiff- characteristics-conduct- or beliefs that are false"

d. 8N times malice is re


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d. the DBs use of the name or li$eness has caused the

damages

3. !his tort is generally implicated when D is using Bs photo-name- li$eness for economic gain

C. ;irst type of privacy to be recogni>ed by most jurisdictions

and the courta. If it is not a public area is it not an invasion of

privacy

i. *unbathing in a public par$1. eneral oints

a. !he tort protects a persons proprietary interest in

the use of his or her name or li$eness

b. plaintiffBs injuries can either be personal (e':humiliation- embarrassment etc." or economic (i.e.

value of name or li$eness"

c. It was the first type of invasion of privacy to be

recogni>ed by the courts. ight to publicity

a. It evolved to police against appropriations ofnames- li$eness- and identity- where the name and

li$eness of the individual had economic value

(celebrities" b. unli$e appropriation tort- the right publicity is

statutory and designed to protect the commercial

value of the plaintiffBs name or li$eness.

c. ,n important distinguishing feature of the right to publicity is that it is treated as a property right

( they e'pire when you e'pire as a person" the right

will survive after the death of the plaintiff- unli$ethe privacy tort of appropriations which e'pires

upon death of the plaintiff

d. it protects against commercial injury- while the rightto privacy tort protects against both personal and

commercial injuries.

. 4'amples:

a. =se of race car diverBs car to promote cigarettes b. , sound a li$e voice (etter ?idler"

c. the birth name of a famous athlete

d. phrases such as #6ereBs Fohnny% to sell portablelavatories

e. a stic$ figure of vanna white

E. Defenses:a. !he )st amendment: newsworthiness and matters

legitimate public concerns (e': crime reporting-

judicial proceedings- public records"

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i. there is a )st amendment privilege that

permits the use of a plaintiffBs name or

li$eness when that use is made in the conte'tof- or reasonably relates to a publication

concerning a matter that is newsworthy or of

legitimate public concern. b. ?atters of public concern:

i. # the commission of crimes- prosecutions

resulting from it- and judicial proceedingsarising from the persecutions- however- are

without


40/40

statements may get first amendment

protection ( they receive limited breathing

space"iv. Intrusion ( unreasonable intrusion upon seclusion of another"

). rotected interest: the tort protects against intrusion

(physical trespass or non&physical" into spheres from whichan ordinary man in plaintiffBs position could reasonably

e'pect that the particular defendant should be e'cluded".

2. .12a. ne who intentionally intrudes- physically or

otherwise- upon the solitude or seclusion of another

or his private affairs or concerns- is subject to

liability to the other for invasion of privacy- if theintrusion would be highly offensive to a reasonable

person.

3. ule:

a. ,n act of intrusion into a private place-conversation or matterA physical or non& physical"

i. 8ote: is the sphere one in which the plaintiff has a reasonable e'pectation of privacyQ

b. !he act is done in a manner that is highly offensive

to a reasonable person ( would the conduct/ act beobjectionable to reasonable persons"

C. 4'amples:

a. *ecret videotaping in the marital bedroomA

b. 0iretapping of phone calls buggingc. 9omputer hac$ing into oneBs medical records- other

personal information

i. !here is no intrusion when the plaintiff isobserved or photographed or recorded in a

public place.

v. Intentional Infliction of 4motional Distress and ,ctual ?alice). *ee hustler maga>ine v. flawell

2. II4D claim emanating from a publication

3. ublic plaintiff (public figures"

C. )st ,mendment rotected *peech (arody"1. 6olding: public figures and public officials may not

recover for the tort of intentional infliction of emotional

distress by reason of publication (such as parody" without ashowing (in addition" that the publication contains a false

statement of fact which was made with actual malice.

MI. ?isuse of +egal rocedure

Documents

Torts outline part 2