Download - 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
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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
$. ;irst ,mendment olicies& ;ault *tandards&?atters of ublic 9oncerni. =.*. 9onst. ,rt. MI- 9l. 2
). !his constitution- and the +aws of the =nited *tates which
shall be made in pursuance thereofA and all treaties made-
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or which shall be the supreme +aw of the +andA and the
judge in every *tate shall be bound thereby
ii. =.*. 9onst. amend. I). 9ongress shall ma$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
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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
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). 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
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). ,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
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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$er was at fault for defamation
2. Initially- the privilege protected the reporting of all official
proceedings in the public interest (e': sessions of
legislative committees- juridical proceedings."3. !oday- it has been e'tended to now include: reports filed by
officials in the performance of their dutiesA information of
public concern uttered at public meetings- etc."
v. ,bsolute P 9onditional rivileges). ,bsolute:
a. Fudicial proceedingsi. ,n absolute privilege will apply to
participants in judicial proceedings as long
as the statements made are pertinent andrelevant to issues in the litigation.
ii. Judges have an absolute privilege
(protection from civil liability" for
defamatory words published in the course of judicial proceedings
iii. Attys are protected for defamatory words
made during the course of a judicial proceeding- if relevant and pertinent to the
issues in the litigation
iv. Witnesses are e'tended the privileges eventhough they voluntarily testify
v. Pleadings. Defamatory statements in
pleadings are covered
b. +egislative proceedingsi. ,n absolute privilege will apply to members
of congress and of the state legislatures- in
the performance of their legislativefunctions.
). ;ederal and state
constitutional provisionshave been construed to
e'tend the privilege to
anything whatever said in
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the course of the
proceedings
ii. ?embers of congress and state legislatureswhile in the performance of their legislative
functions
iii. 6earings of a legislative bodyiv. 0itnesses testifying before legislative body
c. ublic officials
i. ,n absolute privilege will apply to publicofficials in the performance of their official
duties
). 6igh ran$ing federal
e'ecutive branch officers.Immunity is afforded to
high ran$ing federal
e'ecutive officers (e'.
9abinet officials" fromdefamation liability while
acting as their dutiesre
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communicated and receive it. (e': letters of
reference"
c. 9onditional privilege is defeasible: it can be lost ifnot e'ercised properly (e': the communication is
outside the purpose of the privilege"
i. rivilege must be e'ercised in a reasonablemanner and for a proper purpose
ii. rivilege will be forfeited if the defendant
steps outside of the scope of the privilege- or abuses the occasion
). 4': publication to persons
other than those whose
hearing of the speech isreasonably believed to be
necessary or useful for the
furtherance of the common
interest between spea$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$eness when that use is made in the conte'tof- or reasonably relates to a publication
concerning a matter that is newsworthy or of
legitimate public concern. b. ?atters of public concern:
i. # the commission of crimes- prosecutions
resulting from it- and judicial proceedingsarising from the persecutions- however- are
without
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statements may get first amendment
protection ( they receive limited breathing
space"iv. Intrusion ( unreasonable intrusion upon seclusion of another"
). rotected interest: the tort protects against intrusion
(physical trespass or non&physical" into spheres from whichan ordinary man in plaintiffBs position could reasonably
e'pect that the particular defendant should be e'cluded".
2. .12a. ne who intentionally intrudes- physically or
otherwise- upon the solitude or seclusion of another
or his private affairs or concerns- is subject to
liability to the other for invasion of privacy- if theintrusion would be highly offensive to a reasonable
person.
3. ule:
a. ,n act of intrusion into a private place-conversation or matterA physical or non& physical"
i. 8ote: is the sphere one in which the plaintiff has a reasonable e'pectation of privacyQ
b. !he act is done in a manner that is highly offensive
to a reasonable person ( would the conduct/ act beobjectionable to reasonable persons"
C. 4'amples:
a. *ecret videotaping in the marital bedroomA
b. 0iretapping of phone calls buggingc. 9omputer hac$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