Chapter 4 Flashcards
Compensatory Damages
-to compensate/reimburse the plaintiff for actual loss/damage
Two types of compensatory damages
- Special damages- quantifiable loss
Lost wages; medical expenses; replacement items - General damages-nonquantifiable loss
Pain & suffering; physical & emotional damage; loss of companionship; loss of consortium; disfigurement; loss of reputation
Punitive Damages
Punish the defendant/wrongdoer and deter others; only reserved for truly egregious behavior or reprehensible behavior
*Usually involve intentional torts
Legislative Caps
A limit on the amount of damages (both punitive and general) that can be awarded for various claims
5 Elements of Libel/ Defemation
- Defamation
- Identification
- Publication/ Communication
- Fault= Actual Malice/ Negligence
- Damages
Fact vs. Opinion
*Opinion generally covered under 1st amendment
*“Mike is a cheater” vs “I think Mike is a Jackass”
3 Major Defenses
- Truth- The Plaintiff(Suing party) has the burden of proof (proving the statement was false)
- Privilege- which protects fair and accurate accounts of what occurs during many government proceedings or appears in public records
- Fair Comment- a statement of opinion as opposed to a probably false statement
Libel
A written defamatory statement
*Very financially motivated
*Publishing companies and bloggers at risk
*Most civil tort actions
Slander Per Se
A false statement that is considered harmful enough to be presumed to damage a person’s reputation
*“Loathsome disease”
*imprisonment
*Promiscuity
*Improprieties
Who can sue?
Any living person or corporations
*Whole corporation must be defamed, not an individual
Groups suing for libel
*The group must be small enough for individual members to be affected
* 5-100 members; bigger group makes it harder
Libel per se
The words themselves will hurt a person’s reputation
*Murderer, rapist, racist etc.
*General damages
Libel per quod
Additional facts are needed to understand that there is defamation
*plaintiff must show actual harm (provable money loss)
Who are some common libel plaintiffs?
- Organized crime connections
- Drs and Lawyers who rely on public confidence
- Public officials and Public figures- generally offered less protections
Could the republication of libelous statements leave people at fault?
Yes
Negligence v Malice
*Negligence- failing to adhere to the standards of good journalism-fact checking
* Malice- publishing a falsehood knowingly or “reckless disregard” for the truth
What type of fault is needed in cases involving a private figure?
At least ngeligence
What type of fault is needed in cases involving a public figure?
Must show Malice
What are two limitations brought by the Gertz case?
*abolished presumed damages- must prove general or special damages to receive compensation
*limited punitive damages to only cases that prove actual malice
Which court case held that the plaintiff needs to prove false information or that the media was acting with malice or negligence?
Gertz case
What is privilege?
A defense that allows media to report on gov. proceedings and records freely if they give a fair account
*Mostly goes to high elected executive officials
*Judicial is limited to public info only
What is Fair Comment?
Protects opinion about public performances by people who voluntarily place themselves in the public eye.
*Protects hostile expression if based on fact and attack performance, not private life
Opinion v Fact legal test
Janklow v. Newsweek
1. Sepcific statement
2. Verifiable
3. Literary context
4. Public context
Caustic Personality Defense
Protection for radio hosts known for confrontational styles
