DEFAMATION, INVASION OF PRIVACY, AND BUSINESS TORTS Flashcards
A PLAINTIFF MAY BRING AN ACTION FOR DEFAMATION IF:
- THE DEFENDANT’S DEFAMATORY LANGUAGE;
- IS OF OR CONCERNING THE PLAINTIFF;
- IS PUBLISHED TO A THIRD PARTY WHO UNDERSTANDS ITS DEFAMATORY NATURE; AND
- IT DAMAGES THE PLAINTIFF’S REPUTATION.
When a defendant’s defamatory statement applies to a group of people, the general rule is that no member of the group can recover for defamation. This is because a reasonable person who hears or reads the statement would not conclude that it refers to a specific member of the group. However, an individual member can maintain a defamation action if: the group is so small that a reasonable person would conclude that the statement refers to that member or the circumstances of publication would cause a reasonable person to conclude that the statement refers to the member.
ASSAULT; requires that a defendant cause the plaintiff reasonable apprehension of imminent harmful or offensive contact. Words alone cannot cause reasonable apprehension unless they are accompanied by some act apparently intended to carry out the threat (eg, a threatening gesture).
The commission of a criminal act often supersedes the liability of the original actor. However, there is an exception.
The exception occurs if the negligent act creates a condition such that a criminal act is the foreseeable consequence of that action.
A RULE OF PRODUCTS LIABILITY LAW STATES THAT THERE IS NO RECOVERY IF:
A DEFECT IN THE PRODUCT ONLY CAUSES DAMAGE TO THE PRODUCT ITSELF (AS OPPOSED TO PERSONAL INJURY, OR INJURY TO OTHER PROPERTY).
THIS RULE IS CALLED THE “ECONOMIC LOSS RULE”. IN SUCH CASES, THE OWNER OF THE DAMAGED PORDUCT IS LIMITED TO CONTRACT REMEDIES.
A RULE OF PRODUCTS LIABILITY LAW STATES THAT THERE IS NO RECOVERY IF:
A DEFECT IN THE PRODUCT ONLY CAUSES DAMAGE TO THE PRODUCT ITSELF (AS OPPOSED TO PERSONAL INJURY, OR INJURY TO OTHER PROPERTY).
THIS RULE IS CALLED THE “ECONOMIC LOSS RULE”. IN SUCH CASES, THE OWNER OF THE DAMAGED PORDUCT IS LIMITED TO CONTRACT REMEDIES.
PARENTS HAVE A NUMBER OF AFFIRMATIVE DUTIES BASED ON THEIR SPECIAL RELATIONSHIP WITH THEIR MINOR CHILDREN. THIS INCLUDES THE DUTY TO EXERCISE REASONABLE CARE IN THE CONTROL OF THE PARENT’S MINOR CHILDREN.
AS A RESULT, A PARENT WHO IS PHYSICALLY PRESENT AND FAILS TO EXERCISE CONTROL OF HER CHILD IS GENERALLY NOT VICARIOUSLY LIABLE FOR THE CHILD’S TORTIOUS BEHAVIOR.
RATHER, THE PARENT MAY BE LIABLE FOR:
THEIR OWN NEGLIGENCE FOR FAILING TO SUPERVISE.
STRICT LIABILITY CAN BE IMPOSED ON A SELLER (AND ON UP THE CHAIN TO THE MANUFACTURER) FOR THE SALE OF ANY PRODUCT WHICH IS IN A DEFECTIVE CONDITION OR UNREASONABLY DANGEROUS TO THE USER AND RESULTS IN INJURY IF:
- THE SELLER IS ENGAGED IN THE BUSINESS OF SELLING THE PRODUCT IN ITS NORMAL COURSE OF BUSINESS; AND
- THE PRODUCT WAS NOT SUBSTANTIALLY CHANGED BY ANYONE ELSE BEFORE THE PLAINTIFF USED IT.
PUBLIC NUISANCE:
A PRIVATE PERSON MAY RECOVER FOR A PUBLIC NUISANCE ONLY IF
HE HAS SUFFERED UNIQUE DAMAGE NOT SUFFERED BY THE PUBLIC.
BYSTANDER: INDIVIDUALS HAVE A REQUIREMENT TO AVOID CAUSING EMOTIONAL DISTRESS TO OTHERS. THAT DUTY IS BRECHED WHEN THE DEFENDANT CREATES A FORESEEABLE RISK OF PHYSICAL INJURY TO THE PLAINTIFF. THE RISK OF PHYSICAL INJURY IS CREATED EITHER BY: (i) CAUSING A THREAT OF PHYSICAL IMPACT THAT LEADS TO EMOTIONAL DISTRESS OR: (ii) DIRECTLY CAUSING SEVERE EMOTIONAL DISTRESS THAT BY ITSELF IS LIKELY TO CAUSE PHYSICAL SYMPTOMS.
NORMALLY, THE PLAINTIFF CAN RECOVER ONLY IF THE DEFENDANT’S CONDUCT CAUSRED A PHYSICAL INJURY TO THE PLAINTIFF.
IF THE PLAINTIFF’S DISTRESS IS CAUSED BY THE THREAT OF PHYSICAL IMPACT (i.e. THE PL IS WITHIN THE “ZONE OF DANGER” CREATED BY THE DEFENDANT’S CONDUCT), MOST COURTS REQUIRE WHAT?
THAT THE THREAT BE DIRECTED AT THE PLAINTIFF OF SOMEONE IN HIS IMMEDIATE PRESENCE.
ON THE CONTRARY, A BYSTANDER :OUTSIDE THE “ZONE OF DANGER” OF PHYSICAL INJURY WHO SEES THE DEFENDANT NEGLIGENTLY INJURING ANOTHER CANNOT RECOVER DAMAGES FOR HIS OWN DISTRESS. HOWEVER, SOME STATES WILL ALLOW A BYSTANDER TO RECOVER BASED ON FORESEEABILITY FACTORS RATHER THAN THE “ZONE OF DANGER” THEORY IF:
- THE PLAINTIFF AND THE PERSON INJURED BY THE DEFENDANT ARE CLOSELY RELATED;
- IF THE PLAINTIFF WAS PRESENT AT THE SCENE; AND
- IF THE PLAINTIFF OBSERVED OR PERCEIVED THE INJURY.
An actor may intend to commit an intentional tort against one person but instead commit:
- a different intentional tort against that same person
- the same intentional tort against a different person or
- a different intentional tort against a different person.
When this occurs, the actor’s initial intent transfers to the tort actually committed or the person actually harmed. This doctrine of transferred intent applies to five intentional torts—including battery, which is the intentional infliction of harmful or offensive contact on another
Trespass to chattels v. Conversion
Trespass to chattels
- Minor intentional interference with plaintiff’s right to control chattel
- Liable for actual damages—eg, cost of repairs, loss of use
Conversion
- Substantial intentional interference with plaintiff’s right to control chattel
- Liable for fair market value of chattel at time of conversion
Conversion is an intentional exertion of dominion or control over the plaintiff’s chattel that so seriously interferes with the plaintiff’s ownership rights that the defendant is liable for the fair market value of the chattel at the time of the conversion. A defendant who initially uses the plaintiff’s chattel with permission commits conversion when the defendant:
- intentionally uses the chattel in a manner that exceeds the scope of permission and
- seriously violates the plaintiff’s right to control the chattel.
A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff’s right to control the chattel. The defendant is liable for the fair market value of the chattel at the time of the conversion.
Special relationships
imposing duty to protect others
- Parent/child
- Hospital/patient
- Employer/employees
- Shopkeeper/business invitees
- Common carrier/passengers
- Custodian/person in custody
- Innkeeper/guests
Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries
Under the traditional common-law approach, innkeepers owed the highest duty of care to their guests and could be liable for even slight negligence. However, in most jurisdictions today, innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises.* Ordinary care is the care that a reasonably prudent person would use under the circumstances.
To determine whether a defendant has used ordinary care, the trier of fact (e.g., the jury) may consider all relevant factors—including compliance with community or industry custom. But compliance with (or deviation from) custom is not conclusive on the issue of negligence. That is because custom is merely one factor considered by the fact finder to determine whether the defendant acted as a reasonably prudent person.
Contributory neligence
(defense to negligence)
Traditional contributory negligence jurisdiction
Plaintiff’s negligence completely bars recovery
Pure comparative negligence jurisdiction*
Plaintiff’s negligence reduces recovery by plaintiff’s proportionate fault (eg, plaintiff 90% at fault can recover 10% of damages)
*Default rule on MBE.
In traditional contributory negligence jurisdictions (as seen here), a plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. One way the defendant can establish the plaintiff’s failure to use reasonable care is through the doctrine of negligence per se. Explain the rule.
Under this doctrine, the plaintiff’s negligence is presumed if:
- the plaintiff violated a statute
- the statute was intended to prevent the type of harm suffered by the plaintiff and
- the plaintiff is within a class of persons that the statute was intended to protect.
However, even when negligence per se is established, the defendant still must prove that the plaintiff’s violation of the statute caused the plaintiff’s harm.
Under the traditional common-law approach,* land possessors owe a duty of reasonable care to foreseeable land entrants, including invitees who enter the land for a business purpose. However, an invitee is treated as a trespasser if that person intentionally enters an area without permission. But if that person is a known or anticipated trespasser, the landowner owes a limited duty to:
- warn the trespasser about, or protect the trespasser from, hidden, artificial (i.e., man-made) dangers that are known to the land possessor but unlikely to be discovered by the trespasser and
- use reasonable care in active operations conducted on the land.
A land possessor who breaches this duty and causes the trespasser physical harm is liable for negligence.
Res ipsa loquitur
(when defendant’s negligence may be inferred)
Traditional approach
(majority view)
- Plaintiff’s harm would not normally occur unless someone was negligent
- Defendant had exclusive control, or was responsible for all others who had control, over thing that caused harm and
- Plaintiff did nothing to cause harm
Third Restatement
(minority view)
- Accident that caused plaintiff’s harm is type that ordinarily happens due to negligence of class of actors
- Defendant is relevant member of that class
A plaintiff harmed by a defective product can prevail on a negligence claim against a commercial or noncommercial seller even when there is no direct evidence of the seller’s failure to use reasonable care. That is because the seller’s negligence can be inferred from circumstantial evidence under the doctrine of res ipsa loquitur. Under the traditional standard, negligence is inferred when:
- the plaintiff’s harm would not normally occur unless someone was negligent
- the defendant had exclusive control, or was responsible for all others who had control, over the thing that caused the harm* and
- the plaintiff did nothing to cause the harm.
When res ipsa loquitur applies, the plaintiff’s burden to produce evidence of negligence is satisfied and the court will generally deny the defendant’s efforts to dismiss the case (e.g., through a motion for a directed verdict).
Strict product liability claims can only be brought against commercial suppliers or sellers. This means that the defendant must be in the business of manufacturing, selling, or otherwise distributing the type of defective product that harmed the plaintiff. Accordingly, those in the business of providing services are not subject to strict products liability.
Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject to strict products liability if (1) the commercial seller’s product was defective when it left the commercial seller’s control and (2) that defect caused the plaintiff harm. Strict liability is imposed even if the commercial seller did not create or know about that defect.
Pure comparative negligence (default rule on MBE) – when the plaintiff’s own negligence contributes to his/her harm, the plaintiff’s recovery is reduced by his/her proportionate share of fault
Several liability – when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault (e.g., 15% of the damages for 15% of the fault)
Any defendant who pays damages that exceed his/her proportionate share of the fault may sue the other defendants for contribution to collect the amount of excess damages paid. However, the need for contribution rarely arises in jurisdictions that adopt several liability because the damages paid by each defendant are limited to that defendant’s share of the fault.
Battery occurs when a defendant intends to inflict contact (or imminent apprehension of contact) and causes contact that harms or offends the plaintiff. Consent (actual, apparent, or implied) is a defense to battery. Apparent consent exists when a reasonable person would have understood the plaintiff’s conduct or custom to indicate consent (e.g., participation in a contact sport).
However, the plaintiff’s consent is ineffective if the defendant’s conduct exceeds the scope of consent. In the context of an athletic contest, this occurs when the defendant shows reckless disregard for a player’s safety—e.g., by violating a safety rule designed primarily to protect participants from serious injury.
