TORTS OUTLINE



TORTS OUTLINE (expanded)

I. Strict Liability – liability without fault for harm proximately caused by certain categories of conduct

a. Historically/Comparatively

i. Respondeat Superior – employer liability without fault for tortuous activities of employee

1. Theory of “Enterprise Liability” essentially strict liability

a. Rationale – making money from employees thus should bear costs

b. Animals

i. Wandering animals (Livestock)

1. Livestock – domestic animals normally susceptible to confinement within boundaries without seriously impairing their utility; Intrusion of livestock upon the land of others normally causes harm to the land or crops thereon

a. Dogs and cats n/a because difficult to restrict and unlikely to damage crops and land

2. Owners of livestock liable even if all due care is taken to keep livestock contained (ie fence)

a. C/L principle of “Unjust Enrichment” – owner’s cows enriched by eating other person’s corn and it would be unjust to retain the benefit without compensation

b. Other person’s right to “Quiet Enjoyment” of own property/corn/flowers etc.

a. Different matter when a person is on the road/common area – principle of “Reciprocal Risk”

c. C/L principle of “Trespass”

3. Some states (R2nd §504) – strict liability for the possessor of trespassing livestock animals unless:

a. Harm not foreseeable (cow wanders into weak barn and breaks hole in floor, owner walks into hole and breaks arm – no recovery)

b. Herding on roads

c. Complaining landowner does not have a fence

4. Additional liability if negligent

ii. Wild animals

1. Strict liability for owners and keepers of wild animals that cause harm even though the possessor has exercised the utmost care

a. Magnitude of risk outweighs social utility

2. A possessor of a wild animal is subject to liability to another for harm that results from a dangerous propensity that is characteristic of wild animals of that particular class

a. “Lazy Lion” limitation – if a lazy lion escapes and falls asleep on the sidewalk and a person walking by trips over him, no liability

a. Injury must be related to something that makes the animal dangerous

1. ie strict liability if a person trips and falls when running away in fear from the very sight of a lion

2. Negligence principle could apply if possessor knows lion to be lazy

3. Exception – public zoos

a. Theory of social utility thus zookeepers only liable for negligence

a. Private zoos for profit are liable because of minimal/no social benefit

iii. Not generally wild but “Should Have Known”

1. Keepers of domestic animals are liable for injury caused by the animal only where the possessor knew or should have known of the animal’s vicious disposition even if utmost care to prevent harm

a. Actual or constructive knowledge sufficiently puts owner “on notice”

b. Liability limited to harm resulting from the abnormally dangerous propensity of which possessor knows/has reason to know (R2nd §509)

2. Some states have statutes holding possessor strictly liable regardless of possessor’s knowledge of viciousness

a. California

a. Injuries by dogs to sheep, goats etc.

b. Dog bites to people

1. owner’s duty to remove danger to other persons

2. Applies in public or if legally on another’s land

iv. Defenses

1. Assumption of the risk by free and voluntary choice

2. Judicial trend to apply comparative fault principles to lessen recovery

c. Abnormally Dangerous Activity

i. Historically – Ultrahazardous activities

1. Two-part test (criticized as having too high a threshold)

a. Necessarily involves risk of serious harm that can’t be eliminated by utmost care

b. Not a matter of common usage

ii. A person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and , if he does not he is prima facie answerable for all the damage which is the natural consequence of its escape. (Fletcher v. Rylands)

1. Rationale:

a. Deterrence

b. Induce safety

c. Internalize cost of activity

iii. Court determines if activity ADA as a matter of law (ABSOLUTE DUTY)

1. Factors to aid in the determination of what is an ADA (balancing test) – Indiana Harbor Belt RR v. American Cyanamid Co.:

a. Degree of risk of harm to persons or property

b. Magnitude of that harm

c. Inevitability of harm irrespective of precautionary measures that might be taken

d. Nature of the activity in the community in which it’s found (ordinary v. unusual)

a. Issue of “common usage” (car v. tank)

e. Value to the community as compared to the risk of harm created by its presence

f. Locality inappropriateness may be dispositive (split)

2. Restatement 3rd proposes 2-part Rule, (balancing test criticized as too negligence-like)

a. Foreseeable and highly significant risk even with care; AND

b. Not common usage

iv. П’s burden of proof to show:

1. Risk of abnormally great harm should ∆’s safety efforts fail

2. Virtual impossibility of ∆’s elimination of the risk even with the utmost care

3. Resultant harm to П or П’s property, caused by the very hazards the risk of which led to describing ∆’s conduct as abnormally dangerous in the first place

a. Limit to expected harm

b. Under ∆’s control/right to control

v. Recovery expanded (must be direct cause)

1. Intentional blast throws debris on a neighboring house (trespass on property)

2. Intentional blast throws debris on a person on his land (trespass on person)

3. Intentional blast throws debris on a person passing on the highway

a. The safety of the person who has a right to travel by on the highway is more sacred than the safety and right of property (ie the ∆’s right to blast on his own property) – Sullivan v. Dunham

vi. Public Policy Theories

1. Emphasis on policy of fairness (some jx)

a. Thus common carrier exception from strict liability

2. Emphasis on “distribution of loss theory” (other jx – CA)

a. Thus common carrier liable under strict liability based on ability to insure

3. Respondeat Superior

a. SL if in control or have the right to control, versus

b. SL if there’s a risk inherent in the enterprise (even if not in control) - California

vii. Exceptions

1. ADA carried on in pursuance of public duty by public officer, employee or as a common carrier

viii. Defenses

1. Assumption of the risk

a. For the jury to determine if this person knew of danger and voluntarily encountered it

2. Judicial trend to use comparative fault concepts to lessen recovery

3. Cannot avoid liability by delegating duties of abnormally dangerous and dangerous activities

4. No strict liability for harm caused by an ADA if the harm would not have resulted “but for” the abnormally sensitive character of the plaintiff’s activity

II. Products Liability

a. Historical Development

i. Initially necessary to have privity of contract – Winterbottom v. Wright

1. manufacturer→ wholesaler→ retailer→ buyer/lessor→ [user→ bystander]

ii. Exceptions develop

1. No liability

a. Defective circular saw not imminently dangerous to human life thus no liability – Loop v. Litchfield

b. Steam boiler not dangerous unless it’s negligently manufactured – Losee v. Clute

2. Expanded liability

a. Liability for mislabeled poison because of it’s imminent danger to human life – Thomas v. Winchester

b. Painting scaffolding used by painter’s servants – Devlin v. Smith

c. Coffee urn liability due to high likelihood of danger if improperly manufactured – Statler v. Geroge Ray

iii. Privity of K Requirement Eliminated

1. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer is uder a duty to make this dangerous thing carefully - MacPherson v. Buick

iv. Movement to Strict Liability

1. Manufacturer’s negligence should no longer be singled out as the basis for a plaintiff’s right to recover → strict liability – Escola v. Coca Cola Bottling Co. (concurring opinion by Traynor)

a. Rationale

a. Plublic policies

1. incentive to prevent accidents

2. distance between buyer and seller (changing market dynamic)

3. Manufacturer can insure and distribute the cost

a. Cost of doing business like enterprise liability

b. Public cannot anticipate and safeguard from hazards

b. Implied product warranties based on marketing

1. Extension of warranty theory with pin in loaf of bread – use of agency principle as a fiction allowing plaintiff to sue retailer who then goes up the chain

2. Bystander recovery

a. Same public policy that protects reasonably foreseeable consumers should also protect bystanders - Elmore v. American Motors

b. Duty to provide a non-defective product in its intended or reasonable use

i. Who owes the duty?

1. Manufacturer

a. When a manufacturer puts a product on the market, it must be non-defective

a. Spread the loss

b. Have control

c. Marketing the product

2. Everyone in Chain of Distribution

a. Everyone up the chain of distribution is responsible – Vandermark v. Ford

a. Buyer doesn’t know who’s responsible thus sue everyone and let them figure it out

b. Historical difficulty getting other parties in chain into court

1. No longer a problem due to long-arm statutes

c. Retailer in position to put pressure up the chain (liability joint and several)

d. Contractual disclaimers immaterial

b. Must show defect and where it occurred (matter of showing B/D)

3. Hybrid Situations with products and services

a. Factors to take into consideration

a. Necessity v. Unnecessary

1. dentist not liable, hair dresser liable

b. Where problem comes from

1. If from product, potential SL, if from service then must rely on negligence

a. Defective tire v. defective installation of tire

i. Most likely recover if defective tire because consumer is mainly buying the tire and the service is collateral

c. Which predominates, the product or the service?

1. Healthcare provider is not engaged in the business of selling prostheses for the purpose of SL – Royer v. Catholic Medical Center

a. Service/course of treatment predominates (essence of the transaction between the seller and consumer)

b. Result of SL would be higher health costs and an inhibition on research and innovation

ii. Duty owed to whom?

1. Reasonably foreseeable buyer, user and bystander

2. Lessees

a. Bailments (ie rental car) like sales, thus there is a duty – Price v. Shell Oil

3. Not usually to consumers of used goods

a. Courts use three analytical tools to determine – Tillman v. Vance

a. Spreading the risk

1. Usually the only factor involved re: used products

b. Satisfying reasonable buyer expectations

c. Risk reduction

b. SL may apply if retailing treats used goods as new by taking the responsibility of administering a comprehensive test

a. Potentially time to re-think Tillman factors?

c. Breach of Duty

i. Manufacturing Defects

1. Must trace defect back to confirm presence with manufacturer (can be a challenge)

a. Use circumstantial evidence

b. Usually given in exam situation

2. “Defect” defined

a. “Unreasonably dangerous” in some jx per R §402A

a. Criticized as being too much like negligence

b. “Abberational/Not as Intended” when it came off the assembly line per Cronin in California

a. Aberration must be the cause of the injury

1. reasonableness doesn’t matter

a. button broken, loose eraser

b. manufacturer must anticipate foreseeable uses such as repairs

ii. Design Defects

1. 2-option Barker Test

a. Ordinary Consumer Expectation Test

a. Elements

1. Product failed to perform as safely as an ordinary consumer would expect

2. Defect existed when it left the manufacturer’s possession

3. Defect was “legal cause” of plaintiff’s “enhanced injury”

4. Product was used in a reasonably foreseeable manner

b. Subject to Soule limitation that this is an area/situation where a consumer would have an expectation

1. Common experience

c. Defendant usually dislikes this prong

1. No consumer basis for expectation when situation complex

2. Vague standard because of subjective opinions and no basis for alternative comparison and costs

3. Exception - Defendant may prefer this prong based on the obviousness of risk – Camacho v. Honda

b. Excessive Preventable Danger Test (Risk/Utility)

a. For more complex situations, a product is still defective if its design embodies “excessive preventable danger” unless the benefits of the design outweigh the risk of the danger inherent in such design

b. Factors to be balanced (expert testimony) – California BAJI

1. Gravity of danger posed by design

2. Likelihood that the danger would cause damage

3. Mechanical feasibility of a safer alternative design at time of manufacture

4. Financial cost of improved design

5. Adverse consequences to the product and consumer that would result from an alternative design

c. Burden of proof shift

1. Once П shows that the design choice caused the injury/injury enhancement

2. Shift to ∆ to show there is not excessive preventable danger

a. access to information

d. Defendant usually prefers this prong

1. Exception – Plaintiff prefers if alternative available and limitations of benefits over risks – Camacho v. Honda

iii. Safety Instructions and Warnings

1. Purpose

a. Safety instructions make safer/reduce risk by alerting users to the dangers of ways unintended by the manufacturer

b. Warnings alert potential buyers of irreducible dangers in products that cannot be reasonably reduced/avoided no matter how careful manufacturer or user may be

2. Is warning necessary?

a. Not if matter of common knowledge

a. Not necessary to warn of the dangers of drinking large amounts of tequila in small amount of time

b. Courts moving away from rule that “open and notorious” bars recovery

a. Becomes just a factor

3. Is warning adequate?

a. Must be reasonable under the circumstances – Hood v. Ryobi (though courts are all over the place)

a. Generally a question of fact but sometimes a matter of law

b. Proliferation of warning label detail threatens to undermine the effectiveness

1. some jx think more specificity required

b. Adequacy factors

a. Indicate scope of danger

b. Indicate extent/seriousness of harm

c. Physical aspects of warning must be adequate

d. Indicate consequences that might result from failure to follow

e. Means to convey warning must be adequate

c. Addressee

a. Usually geared toward ultimate user

1. Adults – words

a. But foreseeable user may not speak English

2. Children - pictures

b. Learned Intermediary principle – exception to manufacturer’s duty to warn and shields the manufacturer from liability as long as the prescribing physician is adequately warned – Edwards v. Basel Pharmeceuticals

1. Except mass immunizations and FDA mandates for consumer warnings and where drug advertised directly to consumer

2. Emphasis on the physician-patient relationship

d. Causation

a. “Heeding presumption” that adequate warnings would have been followed

e. Unavoidably unsafe products (drugs)

a. Product not defective if (Majority rule):

1. Benefits outweigh the dangers overall; AND

2. Sufficient warnings are given

a. Similar to learned intermediary principle

b. Policy arguments for strict liability

1. Manufacturer is in better position to spread the cost and design/research ways to avoid side effects

f. State of the Art issues where effect/problem unknown at the time of the manufacture/sale

a. Majority – State of art exists at time of manufacture

1. Based on customary standard

b. Minority – Hindsight theory where it is presumed that manufacturer was informed of all risks regardless of the state of the art

1. Manufacturer in better position to bear loss

2. Incentive to put more money into R&D

c. Continuing Duty to Warn

1. Courts split but generally there is a duty to notify or recall once a problem is discovered

g. Representations

a. Dual Purpose doctrine

1. picture of a turkey but product inadequate for a turkey of that size

a. potentially becomes a product design defect

h. Modifications and work-related injuries

a. Foreseeable modification means that the manufacturer must take such modifications into account – Jones v. Ryobi

1. Must give instructions/warnings of the danger of a foreseeable alteration – Liriano v. Hobart

a. Even though recovery would not be permitted under a design defect theory

2. How easy was modification?

a. Difference between cutting a hole and removing a removable part

b. Need to modify for a necessary function (remove drool – Anderson)

d. Damages

i. Personal injury

ii. Property damage

iii. Damage to product itself

1. No recovery if damage purely economic - Seely

a. Dissent thinks consumers should be protected for all damage/losses

2. Commercial parties can utilize K principles to bargain (intersection of Tort and UCC) – East River Steamship Corp. v. Transamerical Delaval

3. Spectrum

a. Rocovery even if pure economic loss→ Recovery if unsafe/could have caused personal injury → Must have damage (Calif.)

e. Defenses

i. Contributory negligence ≠ Defense

ii. Assumption of Risk = Defense

1. Majority uses a comparative fault standard (thus question of contributory negligence does arise – can be hard to compare) – GM v. Sanchez

a. Look at Plaintiff’s breach of an existing duty

b. Public policy favors reasonable conduct by consumer

III. Intentional Torts

a. Intent requirement – actor desires to cause consequences of act, or actor knows that the consequences are substantially certain to result from act

i. Intent can be inferred from knowledge – Garratt v. Dailey

1. Subjective standard

2. Focus on consequence/What actually happens (not the act)

b. Transferred intent

i. Tort to tort

1. Transfer amongst and between

a. Restatement

a. Assault

b. Battery

b. Historically

a. Assault

b. Battery

c. False Imprisonment

d. Trespass to land

e. Trespass to chattels

ii. Person to person

c. Assault

i. Imminent apprehension [intended and resulted (directly or indirectly)]

ii. Assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm - Picard

1. May recover for mental disturbances (fright and humiliation) and resulting physical illness

a. Must be type of apprehension normally aroused in the mind of a reasonable person (fear not necessary)

b. Objective standard

2. Words not enough – must be an action and must be imminent

3. Motive is irrelevant as long as ∆ desired or knowingly created apprehension

iii. No damages necessary (recovery permitted for pure psychological injury)

d. Battery

i. Harmful or offensive contact [intended and resulted(directly or indirectly)]

1. Harmful = any physical impairment of the condition of another’s body, or physical pain or illness

a. No actual harm necessary (ie wart removed against П’s will)

2. Implied in law consent in emergency situations

ii. Battery is an act which intended to, and did, cause a harmful or offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault - Picard

1. Intent to injure is unnecessary in a situation where the ∆ willfully sets in motion a for that, in its ordinary course, causes the injury

iii. A bodily contact is offensive if it offends a reasonable sense of personal dignity/offends the ordinary person – Wishnatsky v. Huey

1. Objective standard

iv. ∆’s offensive contact with an object attached to or identified with П’s body is sufficient to constitute a battery (object considered part of the person) – Picard

v. П need not be aware that the battery is occurring (ie Sleeping Beauty)

e. False Imprisonment

i. Unlawful restraint of an individual’s personal liberty or freedom of locomotion

1. Imprisonment as any unlawful exercise or show/threat of (immediate) force by which a person is compelled to remain or to go where he does not wish to go

a. No duty to escape where mode of escape is either dangerous or unknown

2. Must have intent (desire or substantial certainty) to confine

3. Must have causation (direct or indirect)

4. Words alone can be grounds for false imprisonment

ii. No harm necessary if П is aware of /conscious of the confinement

1. If not aware of confinement, harm necessary for recovery

iii. Not false imprisonment where П voluntarily accompanies ∆ to the confined location - Lopez v. Winchells

1. Not enough that П felt compelled to remain in order to protect her reputation

f. Intentional Infliction of Emotional Distress

i. Requirements – Womack

1. Conduct was intentional or reckless

2. Conduct was outrageous

a. Offends generally accepted standards of decency and morality

a. Vague and varied

b. Mere insults usually insufficient

3. Causal connection between wrongdoer’s conduct and emotional distress

4. Emotional distress must be severe

ii. П may recover for the emotional distress and any resulting bodily harm - Restatement

1. ∆ also liable to any member of П’s immediate family present (with or without bodily harm as result of distress); and

2. ∆ liable to any other person present who suffers bodily harm as a result of distress

iii. Courts take into account what ∆ knew about П’s extra sensitivity – thus more subjective standard

1. Where ∆ takes advantage of П

2. Where ∆ has power over П

iv. Must consider the nature of the conduct, not merely its form – McDermott

1. legislative intent to abolish the common law cause of action for alienation of affection/seduction

g. Conversion

i. Intentional exercise of dominion and control over chattel that so seriously interferes with ownership that justly required to pay full value

ii. Factors to determine interference

1. Extent and duration of control

2. Intent to assert a factually inconsistent right to control

3. Good faith

4. Extent and duration of resulting interference

5. Harm done to chattel

6. Inconvenience and expense caused

iii. Measure of damages is the value of the property converted

1. No damages required, can recover item or value of item and sometimes punitive damages

iv. Still intentional even if accidental

1. example – intend to take baggage from airport even if do not intent to deprive another of their baggage

h. Trespass to chattel

i. Intentional interference with the right of possession of personal property

1. intent to damage or possess a chattel owned by another

ii. Recovery only for actual diminution of value caused by the interference

1. Thus, must suffer and show actual damage

iii. Mistake is not a defense (as in baggage example)

iv. Can transfer intent among and between trespass to chattel and trespass to land (and assault, battery and false imprisonment)

i. Trespass to land

i. Must have intent to be on land (even if you don’t know the land is not yours)

1. Can recover without damages or for nominal damages

2. Can trespass above or below land

ii. Trespass is defined as any intrusion which invades the possessor’s protected interest in exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be measured only by the mathematical language of the physicist – Martin v. Reynolds Metals

j. Defenses and Privileges

i. Consent

1. One who engages in prize fighting, even though prohibited by law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport – Hart v. Geysel

a. Limitations

a. Beyond consent – not what was bargained for

b. Duress

c. Fraud - iron in the glove

ii. Self Defense

1. ∆ must satisfy the jury that :

a. He acted honestly in using force, AND

b. His fears were reasonable under the circumstances, AND

c. The means of force were reasonable under the circumstances – Courvoisier

2. Defense of others – judicial split

a. Some courts - Step into shoes of person being defended – thus if actual right to self defense had, then defense of other valid

a. Regardless of honest and reasonable belief

b. Other courts – Same as self-defense re honest and reasonable belief

iii. Protection of Property

1. One may use reasonable force in the protection of property, but such right is subject to qualification that one may not use such means of force as will take human life or inflict great bodily injury – Katko

a. Higher value upon human life than rights in property

iv. Private necessity

1. Private necessity a defense to claim of conversion or trespass to chattel - but still need to pay damages

2. The ∆ prudently and advisedly availed itself of the П ‘s property (dock) for the purpose of preserving its own more valuable property (ship) and the П is entitled to compensation for injury done – Vincent v. Lake Erie Trans.

a. If П ‘s life or property menaced, destruction of П’s property may be necessary

k. Punitive Damages

i. For punitive, must have something more than the commission of a tort (ie fraudulent and evil motive/ willful or wanton conduct)

1. Factors

a. Degree of reprehensibility

b. Ratio between actual and punitive damages

c. Comparable civil or criminal penalties

2. Potentially unconstitutional if excessive

ii. Bad faith failure to settle

1. Standard of gross disregard of the insured’s interest - State Farm v. Campbell

a. Must balance factors and circumstances

IV. Defamation

a. Prima Facie Case

i. Publication to some third party either intentionally or negligently

1. Third party does not need to believe the statement as true,

a. It’s just necessary that someone would understand if in its defamatory sense

2. Re-publication liability

a. Original publisher also liable if re-publishing was foreseeable

3. Only element that is less than strict liability

ii. Statement is “Of and Concerning” П

1. П’s burden of proof to establish this element

2. Only an issue when:

a. П not named but identifiable (as in fiction)

b. Group defamation – member of a group or corporation

iii. Statement capable of having a defamatory meaning?

1. П alleges the “spin”, then

2. Court to evaluate language in the context of the publication as a whole

a. Language - valuate the fair and natural meaning given by a reasonable person of ordinary intelligence

b. Context

a. Internal - article as a whole including punctuation

b. external knowledge (inducement) or draw inferences (innuendo)

3. If only capable of one meaning – matter of law

a. If capable of more than one meaning – matter of fact for the jury to decide

iv. Is the claimed meaning actually defamatory?

1. A defamatory statement is one that is false and “injurious to the reputation of another” or exposes another to “hatred, contempt or ridicule;”[Prosser] or subjects another person to a “loss of the good will and confidence” in which she/he is held by others [Restatement] – Romaine v. Kallinger

v. Strict liability

1. ∆ doesn’t have to know that it’s “of and concerning” П in order to be liable, nor does ∆ have to know that the statement is capable of being defamatory

vi. Damages – Libel (written) and Slander (oral)

1. Types of damages

a. Nominal damages → no proof needed

b. General damages

a. Presumed → no proof needed

b. Proven → requires evidence

c. Special damages → out-of-pocket pecuniary damages caused by damage to reputation

a. Must be plead specifically and with particularity and proof

b. Must flow directly from injury to reputation caused by defamation, not from the emotional effects of the defamation

d. Punitive damages → if ill will or malice

2. Slander – must show special damages to recover unless defamation falls into per se category

3. Per Se

a. Categories – statements:

a. Charging П with a serious crime

b. That are incompatible with П’s trade/profession

c. That П has a loathsome disease

d. Imputing unchastity to a woman or man

b. No special damages required – general damage is presumed

4. Libel

a. General rule – don’t need special damages

b. Jurisdictional splits

a. All libel carries presumed damages (majority view)

1. More potential for harm; permanence

b. Libel on its face carries presumed damages

1. No need for extrinsic facts

c. Libel not on its face then must show special damages if not in one of the per se categories

1. California requires special damages even if per se

2. Extrinsic facts necessary (inducement)

c. California holds radio and television to be slander

vii. Defenses

1. Truth as a complete defense

a. ∆ must show the “sting” of the charge to be true

a. Literal truth not necessary

1. determine if the same effect would be had on the reader

b. Mitigation of damages if П’s reputation is already in low esteem

a. Some jx only allow truth defense if ∆’s motives were good faith or justified

c. Truth defense rarely used because it’s expensive and risky

2. Privileges

a. Absolute – privilege not lost no matter what the motive

a. Applies to:

1. Floor of House and Senate (regardless of relevancy)

2. Federal government executives (as long as relevant to job)

3. Judges in judicial proceedings (as long as relevant to cause of action)

b. Policy to foster free and open debate and administration

b. Conditional/Qualified – privilege lost if abused

a. Common interest privilege to encourage openness in communication – Liberman

b. Privilege lost if motive of spite or ill will or if ∆ knew there was a strong likelihood of falsity

c. Fair and Accurate report privilege

1. Press privilege to publish accounts of official proceedings or reports even when these contain defamatory statements (exception to liability for re-publishing) – Medico

a. Policy of public supervision

2. Once privilege established, burden shifts to П to show that ∆ abused the privilege via:

a. Failure to be fair and accurate or

b. Material was published for the sole purpose of causing harm to defamed П

d. Fair comment privilege

1. Majority – privilege exists only if underlying facts are actually true

2. Minority – privilege if honestly believe factual basis for criticism

3. Retraction statutes – self help

a. In action for libel against newspaper, П to get special damages only if retraction not demanded. If correction is demanded and not published in as substantially conspicuous a manner as the original, П gets general, special and punitive damages – Burnett

a. Protection is limited to newspapers who engage in the immediate dissemination of news on the ground that the legislature could reasonably conclude that such enterprises cannot always check their sources for accuracy relating to inadvertent publication errors

1. incentive for П to demand retraction and stay out of court

b. In jurisdictions without the statute, retraction may serve as evidence to disprove ill will/malice

1. incentive to print retraction and stay out of court

b. Constitutional

i. Public Plaintiffs

1. Public Officials

a. Public officials prohibited from recovering damages for a defamatory falsehood relating to their official conduct unless he proves that the statement was made with “actual malice” - NY Times v. Sullivan

a. “Actual malice” is knowing falsity or reckless disregard for the truth

b. Policy to foster uninhibited, robust and wide-open debate on public issues

1. duty to criticize the government

c. NY Times case introduced First Amendment issues to defamation actions

2. Public Figures – NY Times standard extended per Walker and Butts

a. Policy same as above because public figures are in positions of power and are involved in the resolution of important public questions or help to shape events in areas of concern to society at large

b. Importance of open and robust public debate; don’t want to cause self-censorship or chilling effect

3. Actual Malice

a. Substantive – knowing falsity or reckless disregard for the truth

a. Strict standard – must entertain serious doubts. Failure to investigate is not enough – St. Amant

1. Motive for publication alone not enough

b. “Of and concerning” – must specifically pinpoint П rather than just an agency

b. Procedural – must show with convincing clarity/clear and convincing evidence – Herbert v. Lando

a. Independent appellate review of adequacy of the evidence

ii. Private Plaintiffs

1. Matter of public concern

a. Rosenbloom plurality held that NY Times standard applies if matter of general/public concern

b. Gertz found that test to be inadequate and held that state interest in compensating injury to the reputation of private individuals requires that a different rule should be applied to them

a. States may define for themselves the appropriate standard of liability for a publisher of defamatory falsehood injurious to a private individual

1. Must have at least negligence to allow recovery (no strict liability) to recover for actual injury only

2. Can apply NY Times standard to recover presumed or punitive damages

b. Private individuals are more vulnerable to injury and more deserving of recovery than public officials/figures

1. Public officials/figures can call press conference to address the issue

2. Private individuals have expectations of privacy whereas public figures thrust themselves into the public eye and assume the risk

2. Matter of private concern

a. Greenmos – Analyze three factors to determine if matter of public or private concern (though law is unclear on this matter)

a. Content

b. Form

c. Context

1. limited distribution as a factor (only five people received info)

b. Undefined area of law re: use of common law rules (strict liability) or is something else needed?

a. П does not need NY Times standard to get presumed or punitive damages, but question as to how much less is required

iii. Determining Status

1. Public officials

a. Rosenblatt – have or appear to have authority/substantial responsibility/control over the conduct of governmental affairs

a. Applies to governmental candidates

b. Rather imprecise boundaries

b. 3-legged stool test of lower court

a. Policy-maker position,

b. Access to media, and

c. Assumption of risk to exposure to criticism by media (ie take on the position)

1. Examples

a. Police officers are public officials

b. Fire-fighters (lower level) – not public officials

c. Public school personnel – courts split

2. Involuntary public figures

a. Rare, little guidance

3. Voluntary public figures

a. All-purpose

a. Household name

b. Limited-purpose

a. Prior/other influential tests

1. Gertz – importance of voluntarily thrusting one’s self to influence the particular issue

2. Firestone – being known in society is not enough, and one has no choice but to go to court in order to get a divorce

a. Press conferences part of self-help

3. Wolston – Just not showing up to court is not enough (unless whole point of not showing up is to make a statement/influence an issue)

4. Hutchinson – Not enough if asking for governmental grant money (risk of over-sweeping a huge group of people)

b. Current main test

1. Wells v. Liddy - For П to qualify as a voluntary limited purpose public figure, ∆ must prove that:

a. П has access to channels of public communication,

b. П voluntarily assumed a role of special prominence in public controversy,

c. П sought to influence the resolution or outcome of the controversy,

d. controversy existed prior to the publication of the defamatory statement, and

e. П retained public figure status at the time of the alleged defamation

iv. Constitutional defense

1. Hustler v. Falwell – Public officials and public figures may not recover for IIED by reason of publication without showing in addition that the publication contains a false statement if fact which was made with “actual malice” (NY Times standard

a. Importance of political cartoons and parodies as apart of the robust political debate

b. Parody could not be reasonably understood as describing facts

a. Thus parody not sufficiently factual to be provably false

c. Defendant as commentator – Fact versus Opinion

i. Matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations where a media defendant is involved - Milkovich v. Lorain Journal

1. Then, if provably false, must have at least negligence pursuant to Gertz

2. No separate category of First Amendment protection or privilege for “opinion”

a. It is ensured that a statement of opinion concerning a matter of public concern which does not contain a “provably false” factual connotation will receive full constitutional protection

b. HIPO receive constitutional protection

a. Hyperbole (rhetorical)

b. Insult

c. Parody

d. Opinion

3. Burden of proof regarding falsity is on the П – Hepps

ii. In a suit by a private П involving a matter of public concern, allegedly defamatory statements must be provably false, and the П must bear the burden of proving falsity, at least in cases where the statements were directed toward a public audience with an interest in a public concern - Flamm v. AAUW

1. thus finds the media/non-media distinction to be untenable

2. Look at context in that publisher was a reputable provider of legal directory for matters of public concern

a. Context determines if statement to be taken as mere opinion or as fact (seemingly fact in this case)

b. Ask whether facts are accessible to everyone or if it seems that this ∆ somehow knew more, thus statement may be more likely to be provably false

d. Press as repeater

i. California Supreme Court – we find persuasive that the republication of accusations made against private figures is never protected by a neutral reporting privilege, whether or not the person who made the original accusation was a public figure - Khawar

e. Reform

i. Present law of libel as a failure

ii. Actual malice is a very hard standard to meet

1. ∆ spending much on litigation and insurance

a. Potential chilling effect?

b. Want constitutional protections to come into play earlier in the game

c. Potential balance by awarding legal fees to prevailing party in a baseless suit

2. Пs who want to show the falsity of the story rather than money miss out because the issue of truth or falsity is rarely decided

a. When П do get to jury, more likely to win for actual damages, but not for presumptive or punitive

3. Public potentially missing out on important information?

iii. Proposed reform

1. constitutional doctrinal level

2. common law/statutory changes

a. litigate falsity alone

b. retraction and reply to eliminate/reduce harm done

V. Protecting Privacy – living individuals only

a. False Light

i. Elements

1. Publicity

a. General dissemination to the public at large

a. Focus on information that actually reaches or is sure to reach the public

2. П put in false light in a way that is highly offensive to a reasonable person

a. Broader than defamation (need not harm reputation)

b. Question of fact

c. Some jx do not recognize false light cause of action, think defamation is enough

a. False light has no per se categories and there is no need for special damages – thus bypasses defamation elements

3. Constitutional limits

a. Court used NY Times standard for recovery of private plaintiff in a matter of public concern – Cantrell

a. This makes recovery under false light actually harder than in defamation case

b. Vague standard

1. perhaps recovery permitted with negligence as to truth?

b. Restatement §652E requires actual malice (per Times v. Hill – but standard in a state of uncertainty)

a. Facts published must be untrue

ii. Notion of person’s right to control her own “publicity”/ portrayal to the public

b. Invasion of Privacy/Intrusion Upon Seclusion

i. Elements

1. Intentionally intrudes (physically or otherwise)

a. Intentionally meaning desire or substantial knowledge of consequence

2. Upon the solitude or seclusion of another or upon his/her private affairs or concerns

a. Must be private information

b. Even some public activities have private aspects

a. Publicly going to bank, but not so that others would see the bill denominations (expectation)

3. Liability if intrusion would be highly offensive to a reasonable person

a. No publication is necessary

a. But may potentially recover more if publication occurs (Dietmann)

ii. Extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in П’s position would reasonably expect that the particular ∆ should be excluded – Nader

1. draw on common law copyright liability

iii. Legitimate countervailing social needs may warrant some intrusion despite an individual’s reasonable expectations of privacy and freedom from harassment – Galella v. Onassis

1. Nonetheless, there is no First Amendment protection of newsmen from liability for (tortuous or criminal) conduct while gathering news

iv. Consent to entry is often given legal effect even though the entrant has intentions that, if known to the owner of the property, would cause him for perfectly understandably and generally ethical concerns, or at least lawful reasons, to revoke his consent - Desnick v. ABC

1. Distinguish by looking at interest the tort in question seeks to protect

a. In this case, no embarrassing or intimate details publicized

b. Investigative reporting concerns

2. Public policy considerations – FHA testers example

v. Triable issues to determine if intrusion had regarding filmed helicopter rescue – Shulman

1. Focus on reasonable expectations (jury to determine)

2. Evaluate based on all circumstances (such as public interest issues)

c. Public disclosure of true private facts

i. Elements

1. Publicity

a. Dissemination to public in general

2. Concerning true information about the private life of another

3. Liability if

a. Highly offensive to a reasonable person, AND

b. Not of legitimate concern to the public (not newsworthy)

a. Can be difficult to define

1. take into account the customs and conventions of the community

a. limitations of common decency

2. lapse of time as a factor to be considered

b. Public has a legitimate interest in actual social history – Haynes v. Knopf

1. People who do not desire the limelight and do not thrust themselves into it, nevertheless have no legal right to extinguish it if the experiences that have befallen them are newsworthy, even if they would prefer that those experiences be kept private

2. Core protection of those intimate physical details the publicizing of which would be not merely embarrassing and painful, but deeply shocking to the average person subjected to such exposure

c. No protection of matters of public record

ii. Constitutional privilege

1. Protection of information lawfully obtained, if public interest is being served and if non-protection would result in timidity and self-censorship - Florida Star

a. Recovery only based on a state interest of the highest order

iii. Breach of Confidence

1. Duty of confidentiality is determined by standards outside the tort claim for its breach (ie doctor-patient relationship) - Humphers

a. No highly offensive to reasonable person requirement

d. Damages

i. Recovery entitlement to

1. harm to П’s interest in privacy resulting from the invasion,

2. mental distress proved to have been suffered if it is of a kind that normally results from such an invasion, and

3. special damages of which the invasion is a legal cause

a. Though seemingly actual malice needed for any presumed or punitive damages

VI. Intentional Economic Harm

a. Misrepresentation – deceit (consumer protection)

i. Elements

1. Misrepresentation

a. Half-truth as misrepresentation (falsity by implication)

b. Misleading statement as a misrepresentation

a. Concealing something otherwise evident

c. Silence is not a misrepresentation unless there is a duty to disclose

a. Moving away from concept of caveat emptor

2. of a Material Fact

a. What a reasonable person would give weight to or

b. If the seller knows that this buyer would give weight to this fact

a. Opinion can be construed as fact based on context/parties invovled

3. Scienter

a. Know that statement is false or know that you don’t know and make the statement anyway

b. Importance of intent/state of mind

4. Deception

a. Actual reliance as actual cause, and

a. Presume reliance by act of purchase

b. Justifiable reliance (but not really)

5. Damages

a. Tort measure of damages = out of pocket

b. Some jx allow “benefit of bargain” damages

a. Better recovery

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