Tort Flashcards
Vicarious Liabiltiy - Negligence
Employers are vicariously liable for the employee’s negligence (committed) while the servants are acting within the scope of their employment/agency.
Vicarious Liabiltiy - Intentional Tort
Employers are generally not liable for an employee’s intentional tort, because intentional tortious conduct is not within the scope of employment unless force is authorized in the employment, friction is generated by the employment, or the employee is furthering the business of the employer.
Elements: Principals liable for intentional torts of agents (employees and IC) if:
- Force is authorized by employment
- Friction is generated by employment or
- Employee/agent furthering the business of employer
Under what authority employee/agent act to further the business on behalf of the employer –> Three types of authority – express, implied, apparent
Detour v. Frolic
Subrule: VL for detour, not frolic.
– E.g., of detour – “running an errand,”
– E.g., not scope of employment/detour – *worker commuting to work in his personal car *
If Small Detour or Minor Deviation from employee’s main scope of work –> not absolve ER of VL
If Frolic –> absolve ER of VL
Vicarious Liability - Independent Contractor
Principal is VL for IC’s negligence in two situations:
1. The IC is engaged in inherently dangerous activities; or
2. The duty is non-delegable
– E.g., duty to keep premises safe, house safe, car in good condition,
– E.g., duty of owner to keep premise from being dangerous to those offsite
– E.g., duty of an owner of a vehicle to keep the vehicle’s parts operating safely
Intentional Torts - General Rule
Intentional Torts require the intent to do the act (NOT the intent to commit the specific tort or to cause the particular harm).
Proximate cause is not significant issue in most intentional tort cases. Use “but-for” cause
Transferred intent for following intentional torts
List
- Assault
- Battery
- False imprisonment
- Trespass
- Trespass to chattels
Transferred Intent
Rule
Under the doctrine of transferred intent, when a defendant commits an act with the intent to harm that one person, but it instead causes harm to a second person, the mental state of the intended victim will “transfer”, or be assigned to, the actual victim. The law will treat the defendant as having intended the conduct to harm to the person who is actually hurt.
List of Intentional Torts
- Assault
- Battery
- False imprisonment
- Conversion
- Intentional infliction of emotional distress
- Abuse of process
- Malicious prosecution
Foreseeable consequences
global subrule
Under elements: Intent to Cause Harm or Apprehension of Harm
A defendant is liable for all foreseeable consequences of an intentional tort
Damages (against intentional tortfesor)
An intentional tortfeasor is liable for all damages proximately caused by their conduct, regardless of their knowledge of the victim’s condition.
Because it is intentional tort, P could also recover punitive damages.
a) General damage – pain and suffering
b) Consequential damage - medical
c) Punitive damages - malice, ill will, etc.
Assault
Assault requires a (1) a volitional act (2) done with the intent to cause either (a) harmful or offensive contact or (b) an apprehension of imminent harmful or offensive contact that (3) actually and proximately causes (4) the reasonable apprehension of harmful or offensive contact.
Volitional Act
Element 1 of Assault
A volitional act is conscious muscle movement.
Battery
Battery requires (1) a volitional act (2) done with the intent to cause either (a) harmful or offensive contact or (b) an apprehension of imminent harmful or offensive contact that (3) actually and proximately causes (4) harmful or offensive contact to the person of another.
Offensive Contact
Subrule for Battery
Offensive contact is an objective test - Would society regard the contact as offensive
e.g., offensive contact
- Burglar took her purse, an item closely connected to her personal space.
Harmful Contact
Subrule for Battery
Harmful contact is even the slightest physical change in condition.
e.g. Patron suffered harmful indirect contact because she fainted and suffered a concussion
False Imprisonment
False imprisonment requires (1) an act with intent to confine someone within boundaries fixed by the actor, (2) directly or indirectly resulting in such confinement (3) against the P’s will and (4) the confined person is either conscious of the confinement or harmed by it.
Confinement
Re: False Imprisonment
Confinement includes denial of the means to leave the particular boundaries set by the defendant, as well as threats of immediate force.
– Threat of future harm is not confinement, but threat of immediate or present harm is
– no means of escape
e.g., When Burglar demanded Patron hand over her purse, and pointed the gun at her, Burglar confined Patron: Patron could not move, and thus was confined to the space in which she was standing.
False Imprisonment Defenses
- Shopkeeper Privilege
- Crime Prevention
in discussing false imprisonment, always consider two defenses is relevant; only write the relevant defenses
Shopkeeper Privilege
Re: False Imprisonment Defenses
Defendant can claim the privilege if: (1) they have reasonable grounds to believe a theft has occurred; (2) they hold plaintiff for a reasonable time to ascertain the facts; (3) in a reasonable manner.
Crime Prevention
Re: False Imprisonment Defenses
Private persons may arrest someone if they have a reasonable belief that a crime has occurred that involves breach of the peace.
Breach of peace
Re: Crime Prevention
Breach of peace means creating a disturbance.
Felony
Re: Crime Prevention
Private persons may arrest someone for a felony if they have reasonable belief that the felony has occurred [or been committed], but the felony needs not have been committed in the private person’s presence.
Misdemeanor
Re: Crime Prevention
Private persons may arrest someone for a misdemeanor if they have a reasonable belief that a crime that involves breach of the peace has occurred, and it has been committed in their presence.
Trespass to Chattel/Conversion
Trespass to chattels requires: (1) an act that intermedles or dispossess the other’s personal property, (2) which causes harm to, or the loss of use of, the personal property. Conversion is similar, but its elements are phrased as the interference with plaintiff’s right of possession that is serious enough in result to warrant that defendant pays the full value of the chattel.
Conversion
Conversion is the interference with plaintiff’s right of possession in personal property that is serious enough in result to warrant that defendant pays the full value of the personal property.
Intentional Infliction of Emotional Distress
IIED requires: (1) the defendant’s intentional or reckless (2) commission of acts constitute extreme and outrageous conduct and (3) causes severe emotional distress.
google+ST
Defense for Intentional Tort
not rule = POPCANS
- Privilege
- Defense of Others
- Defense of Property
- Consent
- Authority
- Necessity
- Self-Defense
POPCANS
Defense of Others
D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake.
Defense of Property
D can use reasonable force to defend real or personal property, including ejecting the person off the property after asking them to leave. D may never use deadly force to protect personal or real property.
Recapture of Chattels
Defense of Property
Defendant may use reasonable, non-deadly force to get back one’s own personal property if:
a) defendant, seeking to recapture, first requests its return or a request would be futile; and
b) D is in hot pursuit.
Express Consent
P affirmatively communicates permission for D to act. But, D’s actions cannot exceed the scope of consent.
Usually a defense for battery and assault.
Implied Consent
A reasonable person interprets P’s conduct as evidencing permission to act.
Whether Consent is Mistaken
Mistake can negate consent when it goes to the consequences or nature of the act.
—
a) E.g.,[undisclosed STD] - Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale’s deception.
b) E.g., [counterfeit bill is not the essence of the deal] - Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.
Authority
- Arrest [Crime prevention], see false imprisonment
- Shopkeeper Privilege, see false imprisonment
- Discipline - Parent/teacher may use reasonable force to discipline a child.
Necessity
D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.
—
two types:
1. Public Necessity
2. Private Necessity
Public Necessity
D commits intentional tort to protect the public at-large from severe harm.
Public necessity serves as an absolute defense, and a defendant is not liable for any damages caused by his trespass.
Private Necessity
D commits an intentional tort to protect himself. If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard. D is not liable for the technical tort but will have to pay for harm D caused.
—
Principle: better to commit tort than risk the consequence
D is not liable for the technical tort but will have to pay for harm D caused.
Self Defense
D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack. There must be an imminent existing threat. Once the threat is over, the defense will not apply.
—
Deadly force cannot be used against non-deadly threat.
Retreat
Self-Defense
a) Some jurisdictions require retreat before using deadly force.
b) One never has to retreat from their own home.
Abuse of Process
rarely tested
Abuse of process involves: (1) using a legitimate process (such as filing a complaint, service, discovery, etc.), (2) for a wrongful purpose, and (3) an act or threat against the plaintiff to accomplish the wrongful purpose. This prohibits the use of any form of process to bring about a result other than that which the process was intended.
Malicious Prosecution
Rarely tested
Malicious prosecution requires: (1) the initiation of civil, administrative or criminal proceedings without probable cause, (2) for a wrongful purpose, and (3) favorable termination of the proceedings on the merits (including a dismissal with prejudice).
Negligence
The five elements of negligence are duty, breach, actual cause, proximate cause, and harm.
Mutliple types of duty
not a rule
- Ordinary duty
- Specialized duties
–Duties of landowner/possessor
–Duty to rescuer
–Duty in emergency
–Professionals (doctors, lawyers, accountants, etc.) - Statutory duty (negligence pe se)
- Children
Children
Minor defendant’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as Defendant would have done. But, children engaging in adult, inherently dangerous activities are held to an adult standard of care
Ordinary Duty
There is a duty to act reasonably towards foreseeable persons under the circumstances and defendant’s conduct is assessed according to a reasonable prudent person.
Tip on Creating the Rule for Ordinary Duty.
- Don’t be general but instead state the circumstances and indicate to whom the duty is owed by Incorporating the standard of care and to whom the duty is owed, without having a separate section on standard of care.
e.g.,
“Defendant had a duty to drive the vehicle reasonably in order to avoid injuring other drivers, pedestrians, or property.”
A person has a duty to act reasonably in interacting with their customers.
A proprietor of an establishment has an ordinary duty to keep their premises safe for customers.
Foreseeable Plaintiffs
not a rule but way of analysis
Re: Ordinary Duty
Plaintiff within Zone of danger –> foreseeable plaintiff
If plaintiff is not a foreseeable plaintiff (not in the zone of danger of negligent act), discuss Cardozo/Andrew split under duty:
1. Cardozo – plaintiff must be in the zone of danger
2. Andrew – [my rule]The plaintiff who was harm was a foreseeable plaintiff, unless the harm was too attenuated from the cause to be foreseeable.
— [MM] focus on the foreseeability of harm/whether harm is too attenuated from cause
e.g.,
Under Cardozo’s analysis, Patron was obviously not in the geographical zone of danger since she was nowhere near Homeowner’s home at the time of the burglary, and thus was not a foreseeable plaintiff in that sense.
Under Andrews’ analysis, foreseeability is an issue of whether either policy or other considerations make the chain of causation too attenuated to be foreseeable.
If the harm is from defendant’s conduct unusual or unexpected –> discuss that as an issue of proximate cause.
Duty to Forsee Criminal Act
Generally, there is no duty to foresee a criminal act unless the breach of duty itself foreseeably increases the risk of the criminal act occurring. (If so, then the duty exists and is adequately foreseeable.)
e.g., leaving unsecure gun in the house at the bedside not uncommon –> break-in and leading theft not foreseeable –> not foreseeable plaintiff
Owners and Possessors of Land to outisde the premise
Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial conditions on the land.
Trees in the Land
Re: Owner and Possers of Land
There is a duty to maintain trees, so they do not cause harm to persons off the premises.
Artifical Conditions on the Land
Re: Owner and Possers of Land
There are two major exceptions:
1. a duty to protect from unreasonable dangerous artificial conditions and
2. a duty to take precautions to protect people passing by from dangerous conditions.
Landowner’s Duty (within premise)
The liability of landowners and possessors, directly or through their employees, depends on the classification of the person coming onto the land: as invitees, licensees, or trespassers.
Persons on Premise
Re: Owner and Possers of Land
Duty depends on classification of person coming onto land
1. Invitees
2. Licensees
3. Trespassers
Duty to Invitee
Definition and Rule
Re: Owner and Possers of Land
Definition: An invitee is someone on the premises for the business purposes of the land owner or possessor.
Rule: Owner and Possessor holds a duty to an invitee to inspect, discover, repair and protect against known or discoverable dangers only if owner and possessor:
1. Knows or by the exercise of reasonable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
2. Should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it.
DRIP - discovery, repair, inspect, protect
could be customers -
—e.g., movie goers and customers to a gas station
Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty
Duty to Licensee
Re: Owner and Possers of Land
Definition: A licensee is someone on the premises for their own purpose, e.g, social guest, of the land owner or possessor.
Rule: The owner and possessor holds a duty to a licensee to repair and protect against known dangers only if owners and possessor:
1. Knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees and should expect the licensees will not discover or realize the danger;
2. The licensees do not know or have reason to know of the condition or the risk involved; and,
3. Fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved.
Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty
Duty to Trespassers
Re: Owner and Possers of Land
Definition: A trespasser is someone on premises without owner’s or possessor’s consent
Rule: The duty to known trespassers is to adequately warn of non-obvious artificial dangerous conditions maintained by defendant.
Rule: The duty toward unknown trespassers is not to use wanton and willful force.
—
If the possessor knows that a limited part of the land is constantly traversed by trespassers, the possessor will be liable to those trespassers for bodily harm if the artificial condition is one the possessor created or maintains, it is likely to cause death or serious bodily harm, is not likely to be discovered by the trespassers, and the possessors have failed to exercise reasonable care to warn trespassers of the condition and the risk involved.
Attractive Nuisance
duty to child trespassers under LL/possessors duty to trespasser
To assess a duty to prevent harm under the attractive nuisance doctrine, plaintiff must show: (1) the owner is or should be aware that there is a dangerous condition present on the land; (2) the owner knows that young persons frequent the vicinity of the dangerous condition; (3) the condition is likely to cause injury because of the child’s inability to appreciate the risk; and (4) the conditions’s utilities and expense of remedying the situation is slight compared with the magnitude of the risk.
Firefigher’s Rule
The rule bars firefighters/police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by special risks of doing their job or a rescue
Common Carriers Rule
Common carriers, such as airlines and similar modes of travel, have a heightened duty to use the highest degree of care to aid and assist their passengers. It is not strict liability.
Rescuees to Rescuers
A rescuee is liable to a rescuer who is injured in the course of the rescue if the rescuee’s own negligence put them in the position of requiring a rescue.
Subrule: In addition, third parties who foreseeably place rescuers in danger are similarly liable.
duty to rescue or aid
No duty to rescue or aid except:
1. person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably. P may be further protected by Good Samaratian Laws unless reckless or intentional wrongdoing.
2. Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies).
3. [negligent entrustment] When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).
Duty to Control Third Parties
kaplan
There is no duty to control the third party’s conduct to prevent harm to another unless there is a special relationship between D and the third party, which gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.
Rules for Providers of Alcohol
- Traditional Rule: Purveyor [providing alcohol] not responsible for DUI injuries.
- Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.
—
These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.
Duty to Protect
Generally, there is no duty to protect another person from third-party criminal conduct (nonfeasance) unless:
a) Special relationship: landlord/tenant, business/invitee.
b) Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third-party criminal conduct particularly foreseeable.
Governmental Entity Defenses
D is Governmental Entity: Whether the govt has a duty depends on function.
1. Proprietary Function (acting in a private area): Treated as any other D for duty analysis.
- Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty.
- Ministerial Function: (route responsibilities – stamp the paper)
a) Duty once the government has undertaken to act
b) Ex: stop sign installed incorrectly leading to accident. - Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
a) there is a special relationship between P and the agency; or
b) the agency has increased the danger beyond what would otherwise exist.
Duty Based on Custom
Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.
Professional Standard
- Medical malpractice: Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
a) specialists - national standard
b) general practioner - local standards - Lawyers, Architects, Accountants: So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty.
Exceptions: court may reject customs that are outdated and/or unreasonable.
Lack of Informed Consent
- Traditional (battery): Physician is liable for battery if no informed consent about risks. Lack of disclosure negates a patient’s case. Doctor is liable if there is a gross deviation from actual consent. (ex: P agrees to tonsillectomy, but leg is amputated instead).
- Traditional (negligence): (professional rule) - Physician must divulge risks that are customarily divulged by a physician in the similiar circumstances
- New Trend – Standard of Materiality: (patient rule) - Physician must divulge all material risks, which means risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment.
Negligent Infliction of Emotional Distress
under negligence analysis - duty
Generally, there is no duty to prevent emotional distress in the absence of physical harm and plaintiff must usually be within the zone of danger from the negligence and suffer physical symptoms from the emotional distress.
Three exceptions to bypass zone of danger and physical harm requirements are:
1. Plaintiff and victim were closely related, the Plaintiff was present (at the scene), and Plaintiff perceived the injury;
2. Duty arises from special relationship between the plaintiff and defendant, so that the negligence has great potential to cause emotional distress; or
3. Defendant mishandle relative’s corpse or Erroneously states that relative has died.
e.g., special relations - doctor-patient
Exception to NIED
Three Exceptions where the zone of danger and physical harm requirement is not needed:
1. Plaintiff and victim closely related, the Plaintiff present (at the scene), and Plaintiff perceived the injury;
2. Duty arises from special relationship between the plaintiff and defendant, so that the negligence has great potential to cause emotional distress; and
3. Defendant mishandle relative’s corpse or Erroneously states that relative has died.
Breach of Duty
A breach of duty means a failure to exercise reasonable care.
Breach of Duty (of Ordinary Duty)
not rule
Where the defendant’s behavior falls short of that level required by the applicable standard of care
– Not enough to say “Defendant Breached her duty”
–Learned Hand factors
1. What is the probability of harm occurring from D’s conduct?
2. What is the likely magnitude of the harm going to be?
3. What is the burden on D to avoid the harm?
—
Standard won’t take any characteristics to account except:
a) Physical conditions (blind, deaf, amputee). In this case, D will be held to the standard of a RPP with that condition.
b) Emergencies not of D’s own making considered by jury (e.g., rushing to hospital because child is dying). Jury can consider emergency to determine if D acted reasonably under the circumstances.
c) Children standard of same age, experience, education and intelligence unless children engaged in adult, inherently dangerous activities.
d) Statutory Negligence: Statutes that provide civil liability supersede common law of torts
Breach of Specialized Duties
not rule
After discussing ordinary duty, then discuss the breach of any specialized duties, such as the duty of a landowner/possessor, duty based on custom, and breach of statutory duty-negligence per se.
may combined breach of ordinary duty and specialized duty: look at outline
Res Ipsa Loquitor
rarely tested in essay
Fact finder can infer negligence (a breach of duty) only if: (1) defendant had control of the instrumentality of the harm; (2) the harm would not have occurred in the absence of negligence; and (3) plaintiff did not contribute to the injury.
RIL in medical malpractice
RIL can be used in medical malpractices cases. If plaintiff established RIL and a medical team is acting as a unit, the multiple defendants will be held jointly and severally liable unless the individual defendants prove that they did not cause the injury.
—
1. Common Knowledge Exception: When equipment is sewn into a P or a sponge is left inside a P after surgery, you do not need experts to establish that this is negligent conduct.
2. Usually cannot use in multiple D cases, except where a medical team is acting as a unit. In such as case, Ds will be held jointly and severally liable unless the individual Ds prove that they did not cause the injury.
Negligence Per Se (NPS)
Statutory Duty
Rule: For a defendant’s violation of a statute to have any legal effect: (1) the statute or ordinance must be a criminal statute (including traffic, regulatory or safety statute) ; (2) the plaintiff must be a member of the class of persons intended to be protected by the statute; and (3) the claimed harm must be the type of harm intended to be protected against by the statute. A finding of negligence per se results in the conclusive presumption of breach and duty in the majority of states.
NPS is NOT a separate cause of action. It is only an alternative type of standard of care – a statutory standard of care. So, even if you find NPS, discuss all five elements of negligence as though NPS is not established.
Breach of Statutory Duty
NPS
A finding of negligence per se results in the conclusive presumption of breach and duty in the majority of states.
—
The violation of a statute that establishes a statutory duty of care gives rise to negligence per se, i.e., conclusive presumption of duty and breach of duty.
Actual Cause
Re: Negligence
Actual Casuse is usually “But for” Test. Only use Substantial factor test when there are joint/concurrent causes and either cause alone is sufficient to have caused the harm.
Format for But for: “But for D’s breach, P would not have been injured.”
Format for Substantial factor test: “Even if the negligence of one did not occur, the harm would still have occurred”
Loss of chance (medical malpractice situations)
- Not a majority rule
- P must show that but for the medical malpractice, P would not have lost chance/died.
- Many jurisdictions now recharacterize injury in these cases as the loss of a chance and reduce damages, but do not extinguish them.
Alternative Liabiltiy Theory
Alternative liability theory applies when plaintiff sued all the defendants, which is just a few, who are tortious or negligent.
If plaintiff successful, the burden shifts to defendants to show they were not the cause. If defendants cannot do so, they will be jointly and severally liable.
—
Alternative liability theory applies when:
a) All Ds are tortious/negligent;
b) All Ds are being sued together (can’t use if one D is left out); and
c) Small number of Ds.
If so, Burden shifts to Ds to show that they were not the cause. If Ds cannot do so, they will be jointly/severally liable.
—
Summers v. Tice – two hunters shoot at quail and P, who is clearly in the line of fire, gets hit. However, it is not clear which hunter actually fired the shot that hurt P!)
Market Share Liabilty
- Generic product - P cannot show which of a large group of negligent Ds were responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its market share.
- Several liability– X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made the product that harmed P.
Proximate Cause
Re: Negligence
Proximate cause is use to determine whether the type of harm plaintiff suffered from was foreseeable from the Defendant’s type of conduct.
D’s negligence would cause tort or crime to 3rd person
subrule for proximate cause
If the defendant’s negligence created a foreseeable risk that a third party would commit a crime or intentional tort, the defendant’s liability would not be cut off by the third party’s crime or tort.
Eggshell Skull Rule
Defendant is liable for all Plaintiff’s injuries foreseeably caused by D’s tort or negligence. [D has to take the victims as D find them.] It does not matter if P is susceptible to greater harm because of P’s peculiar characteristics, like an eggshell skull.
Way of thinking Proximate Cause - How do you know you have a proximate cause question?
Tip
- Just before the harm occurs, imagine you have stopped the action.
- Who would you reasonably and normally expect to be injured, and how would you expect them to be injured?
- If the actual person injured is different, then discuss this under duty to a foreseeable plaintiff, as discussed above.
- If the manner of injury is different, you may have a proximate cause issue. These tend to be pretty obvious: a string of unlikely circumstances occurs, and the harm that is at the center of the problem is a long way down the road.
Superseding Cause
proximate cause
A superseding cause is an unforeseeable and intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the original tortfeasor of liability for lack of proximate cause.
—
(1) Unforeseeable criminal acts
(2) Unforeseeable torts of third parties,
(3) highly extraordinary harm arising from D’s conduct, including gross negligence by third parties, and
(4) acts of nature.
Harm
Re: Negligence
The element is the nature of the harm
List of Negligence Defenses
not rule
- Contributory Negligence – complete bar
- Comparative Fault
- Assumption of the Risk
- Emergency
Plaintiff’s Fault on Contributory and Comparative Fault
Rule
ability to combine both contributory and comparative fault in one swoop
Defendant will claim that Plaintiff was contributorily or comparatively negligent. But this requires Plaintiff to have a duty to act, and to have failed to act with reasonable care.
Contributory Negligence
Re: Negligence Defense
Contributory negligence of the plaintiff is a defense and a complete bar to recovery.
Last Clear Doctrine
Re: Contributory Negligence
A plaintiff may invoke the last clear chance doctrine - defendant has last opportunity to prevent harm - to avoid a finding of contributory negligence.
Last Chance Doctrine and the Inattentive Plaintiff
Re: Contributory Negligence
Although plaintiff caused the dangerous condition because of his own negligence, plaintiff could recover if the defendant could have prevented the harm by using reasonable care.
bad definition -
had to take it from law firm website
Comparative Fault
Re: Negligence Defense
Two types
1. Pure comparative fault reduces the recovery by the percentage attributable to plaintiff’s fault. (damages reduced by % of negligence)
2. Non-pure comparative fault bars recovery if plaintiff is at least (exceeds?) 50% at fault.
Assumption of Risk
Re: Negligence Defense
Plaintiff is denied recovery if he or she knows of the risk and voluntarily assumes it. The particular risk must be apprehended and understood, not a generalized risk of harm. Moreover, there are certain risks that are not assumed: the risk of traveling on a common carrier; where a statute protects class, and in cases of fraud, force, or emergency.
–Merely venturing into traffic or driving a car is not an assumption of the risk – the particular risk must be apprehended and understood, not a generalized risk of harm.
–Certain risks are not assumed: the risk of traveling on a common carrier; where a statute protects class, fraud, force, or emergency.
Emergency
Re: Negligence Defense
[this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense]. So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency.
—
The duty is to act as a reasonable person would be under the same emergency unless the defendant created the emergency.
Analytically, this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense. Discuss this when the facts state something like, “Defendant suddenly swerved to avoid …” So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency
Trespass to Land
Trespass is the entry onto or remaining upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. Mistake is not a defense.
Where trespasser has the privilege of necessity and causes harm, (1) defendant is still liable for actual damages but not punitive damages; and (2) landowner may not eject trespasser or their property by use of excessive force.
Nuisance
not rule
Two types of nuisance:
1. Public nuisance
2. Private nuisance
Public Nuisance
Public nuisance interferes in a common public interest.
Private party bringing this action must suffer harm that is different in kind from that suffered by members of the public in general.
List of Public Interest
Re: Public Nuisance
- public health;
- public safety;
- public convenience;
- public comfort or public peace; or
- it involves the violation of a statute, ordinance or regulation (often involving common public safety or health – such as anti-pollution statutes).
Private Nuisance
Private nuisance requires: (1) an unreasonable invasion of another’s interest in the use or enjoyment of his or her land; (2) and the invasion is either (a) intentional; or (b) unintentional and otherwise actionable as negligence, recklessness, or an abnormally dangerous condition or activity. The invasion to another’s use and enjoyment in the land must be unreasonable to a reasonable person.
Unreasonable invasion is an objective test
If the invasion is intentional and unreasonable, the court will not balance the harms in considering an injunction. Otherwise, it will do so.
Strict Liability
Strict liability describes liability without fault for harm proximately caused by certain categories of conduct.
List of Strict Liability and its Defenses
not rule
- Animals
- Abnormally dangerous activities
- Product liability
– Manufacturing defects
– Design defects
– Failure to warn defects
Defenses to SL
– Comparative negligence and assumption of the risk is defenses
– Contributory negligence is not a defense to SL
Wild Animals and Livestock
Re: Strict Liabiltiy
Owners and possessors of livestock and wild animals are strictly liable for the harm caused by the animals, including both property damages and personal injury. Thus, a plaintiff [in a strict liabiltiy case] must show that: (1) Defendant owned (2) a wild animal (3) that caused harm to plaintiff of a kind typically caused by the wilderness of the animal.
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Note the act affect P determine type of standard:
a) Tiger eat person –> SL
b) Tiger walks on street and car swerve to avoid the tiger –> negligence
Note: public zookeepers are only liable for negligence.
Domestic Animals
Re: Strict Liabiltiy
[The traditional rule is that] an owner of a domestic animal is liable for the harm done by the animal only if the owner knows, or has reason to know, of the animal’s vicious tendencies.
Abnormally Dangerous Activities
Re: Strict Liabiltiy
The elements of strict liability for abnormally dangerous activities are: (1) the carrying on of an abnormally dangerous activity, (2) that actually and proximately causes harm, (3) the risk of which makes the activity abnormally dangerous.
Factors Abnormally dangerous activity
Re: Abnormally Dangerous Activities
The definition of an abnormally dangerous activity are:
1. The high degree of risk of harm,
2. The gravity of the harm;
3. The inability to eliminate the risk using reasonable care; and,
4. The activity is not of common usage in the community
Products Liability
There are three distinct significant legal theories of liability: strict products liability, negligence, and breach of warranty.
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The liability of commercial suppliers may apply to everyone in the vertical chain of distribution of the product – designer, manufacturer, distributor, retailer.
Strict Products Liability
Re: Products Liability
The elements of SPL are:
(1) Defendant is in the business of selling or distributing products;
(2) defendant sells or distributes a defective product (places it in the “stream of commerce”) [that remains unchanged when it gets to the consumer];
(3) defect must exist at the time of the sale or distribution—remains unchanged by the time it reaches to the end use [its condition has not changed by the time it reaches its end use];
(4) the defect [actually and proximately] causes harm to a foreseeable person.
element 2 is where we talk about types of defects
SPL
analysis
- Defendant is commercial supplier
- Defendant sold Defective Product
a. manufacturing defect
b. design defect
i) risk/utility theory
ii) reasonable alternative design
iii) CA consumer expection - Warning Defect
- Product remains unchanged
- actual cause
- proximate cause
- harm
Defenses
- not contributory nelgience
- comparative neligence and assumption for risk are
Business of selling or distributing products
Definition, 1st element of SPL
Definition of the business of selling or distributing products includes all commercial entities in the vertical chain of distribution - manufacturers, wholesalers, retailers, distributors– but does not apply to causal seller.
Three categories of product defects
2nd element, SPL
Three categories of product defects, any of which must exist at the time of sale or distribution, are manufacturing defect, design defect, and inadequate instructions or warnings.
Manufacturing Defect
Re: Strict Products Liability
A manufacturing defect is one where the product departs from its intended design. The product contains a flaw not part of the design.
Error on the assembly line
Design Defect
Re: Strict Products Liability
not stated on mideterm
There are three types of design defects:
1. risk-utility test
2. reasonable and feasible alternative design, and
3. consumer expectation test
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Either a defect that creates an “inherently unreasonable risk,” or a defect where “the foreseeable risks of harm could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.”
Three types of design defect
1. Risk/utility - or
2. Reasonable and feasible alternative design
3. Consumer expectation aka reasonable expectation test (CA only)
common to the entire product line, causing the products to be generically dangerous
Risk/utility
Re: Design Defect
Plaintiff shows that the product’s design defect is inherently unreasonable risk because the risk of harm is significant and there is little to no utility.
OG: Generally, a plaintiff must prove that there is an inherently unreasonable risk because the risk of harm is significant and there is little or no utility to the product.
Reasonable and feasible alternative design
A plaintiff shows that there is a reasonable and feasible alternative design that would have been economically and technologically feasible and safer.
Design plan - Compliance with Govt Standard
Subrule
The product’s compliance with applicable government safety standards (including labeling requirements) is evidence that the product is not defective, but it is not dispositive.
Consumer expectation (CA only)
rarely tested
Plaintiff shows that the product dangerously fails to perform in contrast to what a consumer would expect it to; such failure is a design defect.
Case law – When a motorist applied the brake, the car accelerated instead of stopping.
Warning Defect
Re: Strict Products Liability
A manufacturer is liable for failure to warn if defendant (1) knows or has reason to know that the product is likely to be dangerous for the use for which it is supplied; (2) has no reason to believe that the users of the product will realize its dangerous condition; and (3) fails to inform the users of the product’s dangerous condition or of the facts which make the product likely to be dangerous.
Learned Intermediary Doctrine
3rd element for Warning defect
The duty to warn regarding prescription drugs and medical devices is satisfied if the manufacturer gives adequate warnings to the patient’s physician.
Actual Causation
both SPL and product negligence
To prove actual cause, the plaintiff must trace the harm suffered to a product’s defect that existed at the time the product left the defendant’s control. Any substantial alteration in the product’s condition after it left the defendant’s control may negate actual cause.
Presumption of warning defect
subrule - actual cause
If there is a warning defect, plaintiff can rely on a presumption that an adequate warning would have been read and heeded.
Proximate causation
both SPL and product negligence
To prove proximate cause, the plaintiff must show that the type of injury she suffered was foreseeable at the time the product was placed into the stream of commerce. An injury from a foreseeable misuse of the product may be foreseeable.
Defenses to SPL
- Comparative negligence and assumption of the risk are defenses to strict products liability.
- Contributory negligence and reasonably foreseeably misuse of product are NOT defenses to strict product liability
Product Liability – Negligence
Re: Products Liability
The elements of products liability negligence are duty, breach, actual cause, proximate cause, and harm.
Duty Owed in Product Liability
Product liability - negligence
bad
Duty
1. Duty is owed to the immediate purchaser and to all other persons whom the manufacturer foreseeably knows will use the product without further inspection or tests
2. Duty is owed when defendant knows that, in the event of negligence, product is reasonably probable to cause injury.
3. But retailers are only liable for negligence if they actually become aware of a defect and still sell the product – generally there is no duty of a retailer to inspect each product they sell.
No privity is required between plaintiff and defendant.
Product Liability – Negligence
Elements and Defense of Products Liability - negligence
- Duty - to make products or maintain products carefully
– Duty is owed when defendant knows that, in the event of negligence, product is reasonably probable to cause injury
– Duty owed to purchaser AND to others than immediate purchaser if:
(a) Reasonably certain to imperil user
(b) Likely/foresseeable to be used by others without inspection/tests
(c) But retailers are only liable for negligence if they actually become aware of a defect and still sell the product – generally there is no duty of a retailer to inspect each product they sell. - Breach - failure to meet standard of care
- Actual cause - but for the breach, plaintiff would not have been injured
- Proximate cause
– Plaintiff/harm are foreseeable;
– Andrews: Harm is foreseeable and no independent intervening cause; not remote - Harm - generally personal injury or property damage).
Defenses
1. Contributory negligence
2. Comparative negligence
3. Assumption of the Risk
Duty
product liablity neligence
The manufacturer of a product owes a duty to all foreseeable users or bystanders, whether they are immediate purchasers or not, to make the product carefully. The requirement of privity has been eliminated. The products were negligently made if it is reasonably certain to place users in peril. Reasonably certain means that the danger is probable.
The manufacturer knows or should know that the persons other than immediate purchaser would use the product without further tests or inspection.
Retailers do not have a duty to inspect each product they sell. But the retailer is only liable for negligence if they actually become aware of the defect and still sell the product.
Breach of Warranty
Re: Products Liability
Three types of Breach of Warranty
1. Express warranty (§2-313)
2. Implied warranties of merchantability (§2-314)
3. Implied warranties of fitness for a particular purpose (§2-315)
Negligence v. warranty: even if the defendant did everything right, if the goods that the defendant sells are not as warranted, defendant is in breach and owes plaintiff damages
Express Warranty
Re: Breach of Warranty
my rule:
The elements of an express warranty are: the making of an express warranty; Plaintiff’s reliance on the warranty, and breach of warranty that results in harm to a foreseeable person.
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The elements of an express warranty are the making of an express warranty, which is one that is an affirmation of fact concerning the goods, reliance by the consumer on the warranty, and a breach of the warranty that causes harm to a foreseeable person.
Elements:
1. Defendant makes promises/affirmations of fact that describe the product and are part of the basis of the bargain
2. Plaintiff relies on promises/affirmations of fact in purchasing the product
3. Promises/affirmations of fact are not fulfilled
4. Plaintiff is harmed as a result of the failure of the promises/affirmations of fact
Implied Warranties of Merchantability
Re: Breach of Warranty
my rule:
The elements of the implied warranties of merchantability are:
1. the implied warranty exists;
2. the purchaser relies on the warranty; and,
3. the breach of the warranty proximately caused the loss sustained.
Merchantability means the products are sold by merchant in the goods of the kind. The products must be of fair average quality and fit for the ordinary purpose for which such products are used; they are adequately packaged or labeled and they conformed to the promise made on the container or label, if any.
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The elements of the implied warranties of merchantability are the existence of the warranty and reliance on it by the purchaser, the breach, and that the breach of the warranty proximately caused the loss sustained.
Elements:
1. The product is sold by a merchant in goods of the kind (Existence of warranty).
2. Implied warranty that the products are of fair average quality and fit for the ordinary purposes for which such products are used, are adequately packaged or labeled, and conform to the promises or affirmations made on the container or label, if any (Scope of warranty)
3. Breach—products are NOT of such quality and fitness
4. Breach of implied warranty caused the loss (generally personal injury or property damage).
5. No privity is required between plaintiff and defendant.
Merchantability
Definition re: Implied Warranties of Merchantability
Merchantability means that the goods are sold by a merchant in goods of the kind, that goods must be of fair average quality and fit for the ordinary purposes for which such goods are used, are adequately packaged or labeled and conform to the promises or affirmations made on the container or label, if any.
Implied Warranties of Fitness for a Particular Purpose
Re: Breach of Warranty
my rule:
The elements of the breach of the implied warranty of fitness for a particular purpose are:
- the implied warranty exists; and,
- the defendant’s breach of warranty caused the loss sustained.
There, the seller must know of the buyer’s particular or special needs at the time of the sale, and must recommend the product with that knowledge.
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The elements of breach of the implied warranty of fitness for a particular purpose are the existence of the warranty, the breach, and that the breach of the warranty proximately caused the loss sustained. There, the seller must know of the particular or special needs of the buyer at the time of the time of the sale, and must **recommend the product with that knowledge. **
Elements
1. Seller does or should know of the particular or special needs of the buyer at the time of the sale, and must recommend the product with that knowledge (existence of the warranty).
2. Breach—products are not fit for such particular purpose
3. Breach causes the loss (generally personal injury or property damage).
Invasion of Privacy
- Intrusion
- Public disclosure of private facts
- False light
- Appropriation of commercial identity
Intrusion upon the affairs or seclusion
Intrusion upon affairs or seclusion requires:
1. defendant was prying or intruding on the plaintiff’s affairs or seclusion;
2. the thing that the defendant had intruded or pried upon is private; and,
3. the intrusion would be highly offensive to a reasonable person.
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To make a prima facie case for instrusion upon affairs or seclusion, plaintiff must prove that:
a) There was an act of prying or intruding by the defendant on the plaintiff’s affairs or seclusion;
b) That the intrusion would be highly offensive to a reasonable person; and,
c) That the thing to which there was an invasion or prying is private.
Public Disclosure of Private Facts (PDPF)
PDPF requires: (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) that is not of legitimate public concern.
Constitutional limit on PDPF (strict liability): if the press publishes truthful information that it has lawfully obtained, civil or criminal punishment may lawfully be imposed, if at all, only when narrowly tailored to achieve a compelling state interest.
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Liability of PDPF exists when:
a) The details are so personal that its disclosure would offend a reasonable person even if the information is true;
b) The details are not generally known to the public;
c) The details are not newsworthy; and
d) The details are widely communicated.
Private Fact
Re: Public Disclosure of Private Facts (PDPF)
A fact is private if the plaintiff has made reasonable attempts to keep the matter private.
Newsworthy
Re: Public Disclosure of Private Facts (PDPF)
A three-part test for newsworthiness considers:
1. the social value of the facts published;
2. the depth of the article’s intrusion into ostensibly private affairs; and
3. the extent to which the party voluntarily acceded to a position of public notoriety.
Appropriation of Commercial Identity (protects one’s pecuniary interests)
Appropriation protects the person’s pecuniary interest in in the commercial value of their identity. The elements are: (1) an appropriation or use (2) of the plaintiff’s identity (3) by the defendant (4) for the defendant’s commercial purposes.
–
Elements
1. An appropriation or use
2. Of the plaintiff’s identity
3. By the defendant
4. For the defendant’s commercial purpose
Note:
1. appropriation is not like the other 3 privacy torts, which protect the person’s interest in emotional peace and mental calmness
2. This is not limited to celebrities
False Light
False light invasion of privacy requires: (1) Defendant publicizes a private matter concerning plaintiff (2) that places the plaintiff before the public in a false light (3) that would be highly offensive to a reasonable person (4) and, if it involves a matter of public interest, defendant acted with malice (knowledge or reckless disregard of the falsity of the matter and the false light).
–
Elements
1. Defendant publicizes a private matter concerning the plaintiff
2. That places the plaintiff before the public in false light
3. That would be highly offensive to a reasonable person
4. And, if matter of public concern, defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)
Misrepresentation
4 types of misrepresentation
1. Intentional misrepresentation
2. Deceit (concealment)
3. Negligent misrepresentation
4. Promise made without intent to perform
Intentional Misrepresentation
The elements of intentional misrepresentation are: (1) Defendant made a false representation concerning a presently existing material fact (2) that the Defendant either (a) knew was false or (b) made recklessly, knowing that he had insufficient knowledge on which to base the representation (3) for the purpose of inducing the other party to act on the representation; (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it (5) and was thereby induced to act to his injury and damage.
Negligent Misrepresentation
The elements of negligent misrepresentation are: (1) Defendant made a false representation concerning a presently existing material fact (2) that the Defendant makes false statements, honestly believing them to be true, but without reasonable ground for such belief (3) for the purpose of inducing the other party to act on the representation; (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it (5) and was thereby induced to act to his injury and damage.
Concealment
Concealment means that (1) the Defendant omits a material fact, and the omission makes what the Defendant said misleading or untrue (2) that the defendant knew was misleading (3) for the purpose of inducing the other party to act on the representation (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and was thereby induced to act to his injury and damage.
Interference with Contract
Five separate elements to a claim for intentional interference with a contract: (1) interference (2) which is intentional and (3) improper or unlawful (4) in a contract between two other persons (5) causing one of them to not perform the contract.
Interference requires some act, and not merely a refusal to do something. Interference must be unlawful and unprivileged. Thus, it is not a tort to interfere in, or induce breach of, an illegal contract.
The interfered contract must be between two other persons. Thus, a party to a contract cannot be sued for intentionally interfering with his or her own contract.
Interference with Economic Relationships
Five separate elements to a claim for intentional interference with prospective economic relations, plaintiff must prove: (1) an economic relationship between plaintiff and third parties; (2) knowledge by the defendant of the existence of the relationship; (3) intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages proximately caused by the acts.
Tort Damages
Tort damages must be (1) causal, (2) foreseeable, (3) reasonably certain, and (4) unavoidable (duty to mitigate damage).
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* Economic loss is generally not recoverable in a negligence action unless there is also either physical injury or injury to property.
* Punitive Damages are only recoverable if the Defendant’s conduct was malicious, willful or reckless.
Contribution
Not a rule?
Where there is joint and several liabiltiy, and comparative fault, contribution allows a tortfeasor who is required to pay more than their share of the damages to have a claim against the other jointly liable parties for the excess he paid. Where joint and several liability has been abolished, contribution is not necessary since a tortfeasor is only liable for his or her share of the harm.
Indemnity
Indemnity shifts the liability the entire loss (100%) from one defendant to another. Indemnity is available where:
1. It is provided by contract;
2. a party is only vicariously liable;
3. under strict products liability, supplier is liable to the injured plaintiff, but each supplier has a right of indemnification against all previous suppliers in the distribution chain;
4. there is a considerable difference in degree of fault
Defamation
Defamation requires: (1) a defamatory statement; (2) of or concerning the plaintiff; (3) publication, which means communication of the statement to a third person; and (4) harm to reputation (unless defamation per se)
Libel per se
Re: defamation
Libel on its face
Defamatory statement
1st element of Defamation
A defamatory statement is one that holds the plaintiff up to ridicule or harm to reputation. Opinion is not defamatory unless the opinion is necessarily founded on asserted facts. Defamation is a strict liability tort.
Two types of defamatory statements:
1. Slander – oral defamation
2. Libel – written or broadcast defamation (radio and TV)
5 categories of Slander:
1. Accusation of crime
2. Imputes presence of contagious or loathsome disease
3. Tends directly to injure in respect to office, profession, trade or business
4. Impotence or a want of chastity
5. Statement that causes actual damage
There is no recovery for slander absent proof of special damages unless it is slander per se
Of and concerning plaintiff
2nd element of Defamation
Of and concerning the plaintiff means the hearer or reader reasonably understands that the statement is defamatory and refers to the plaintiff.”
Libel per quod (LPQ)
Within 2nd element – Of and concerning plaintiff
LPQ requires proof of extrinsic facts (inducement) and the defamatory meaning in light of those facts (innuendo), or colloquium. Most libel is obviously libelous and thus libel per se.
Publication
3rd element of Defamation
There’s publication when defendant communicated the statement to a third party.
Liability for Republication
Each person who publishes the statement or republishes it, after hearing it from another, is liable for defamation. However, a person is not liable for a subsequent, voluntary and unauthorized republication unless the republication was the natural and probable consequence of the communication.
Harm
4th element of Defamation
Definition: The harm required is harm to reputation
Special damages requires proof unless it is defamation per se, where damages are presumed.
– Libel per se carries presumed damages so no special damages is required.
– Libel per quod requires proof of special damages before general damages will be awarded.
Defense of Defamation
- Truth – complete defense
- Privilege – absolute or qualified
- 1st amendment defenses
Truth
Re: Defense of Defamation
Truth is a complete defense to defamation. However, truth does not applied if P [is not public figure, but] is private person of private matter.
Privilege
Re: Defense of Defamation
- Absolute Privilege
- Qualified Privilege
Absolute Privilege
In absolute privilege, it does not matter if statement is false or is made with malice. Absolute privileges covers statements made in: (1) the proper discharge of an official duty; (2) legislative proceeding, (3) judicial proceeding, (4) in any other official proceeding authorized by law, or (5) in the initiation or course of any other proceeding authorized by law.
Under constitutional law test, feature debate clause in the Constitution is defense to defamation [questionable clause]
Qualified Privilege
Qualified privilege covers the statement that is made without malice, and to a person interested therein:
(1) by one who is also interested, or
(2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.
The defendant has the burden to prove he is covered under the privilege; if successful, then the plaintiff bears the burden of proving that the privilege has been lost through abuse.
—
to Maniero, QP applies in:
a) recommendation,
b) rating interest,
c) people having mutual interest in the topic
1st Amendment Defenses
Elements of Defamation against 1st Amendment Defenses
If 1st amendment defenses were raised, the elements are:
1. Defamatory statement,
2. Of and concerning the plaintiff,
3. Publication,
4. The requirement of harm (or its absence due to presumed damages),
5. Falsity of the defamatory language; and
6. Fault
Rule: Plaintiff must also prove that statement was false, and defendant acted with malice (knowledge that it was false or reckless disregard for the truth)
Four questions approach to defamation in 1st amendment defenses
- What is the status of P (public official, public figure, private figure)?
- What is the subject matter of the statement (public or private concern)?
- What damages does P seek?
- What is the status of D?
Public official or public figure as plaintiff
Re: Defamation
Defenition and Damages
If plaintiff is public official or public figure, Plaintiff must also prove that statement was false, and defendant acted with malice (knowledge that it was false or reckless disregard for the truth). For plaintiff to recover presumed damages, such as when the defamation is slander per se or libel per se, or punitive damages, plaintiff must still prove malice
Public Figure: A public figure includes one who voluntarily injects themself, or is drawn (is a “central figure in the controversy”) into the forefront of a public controversy to influence the resolution of issues, or, by reason of their pervasive fame or notoriety through achievements, shape events in areas of concern to society at large. New York Times v. Sullivan
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Required to prove false statement and actual malice
NYT v. Sullivan - the First Amendment requires that a public official may not recover damages of any kind for a defamatory falsehood relating to his official conduct unless he proves that the statement was false, and was made with actual malice: knowledge that it was false or reckless disregard of its falsity.
Private plaintiff with matter of public concern
Re:Defamation
Defenition and Damages
Usually against defendant media
if plaintiff is private citizen and the defamatory statement involves a matter of public concern, Plaintiff must also prove that statement was false, and defendant acted with negligence” to recover actual damages. P still requires malice to recover presumed and punitive damages.
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Public Concern: The defamatory statement involves a matter of public concern when the statement is false and that the defendant makes the false statement at least through negligence in order to obtain actual damages. *Gertz v. Welch *
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P required to prove false statement by negligence for actual damages
Required to prove actual malice for presumed and punitive damages
Private plaintiff of purely private concern
if plaintiff is private citizen and the defamatory statement involves a matter of purely private concern, only the first four elements of defamation are required, and malice is not required in any form. Instead, P prove damages, presumed dmages and punitive damages by strict liability.
Determine public v. private concern
rule
To determine whether the matter is a public or private concern, the courts will look to the content, form, and context of the publication.
Special Damages
Special damages are actual pecuniary losses that must be specifically pleaded and proven. Whether special damages must be alleged as part of the prima facie case depends on the type of defamation. [look at the damage chart]
Defamation: type of cases and damages
Type of Case
* Actual Damages
* Presumed/Punitive Damages
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- Public Official or Public Figure
* Actual Damage by Actual Malice by clear and convincing evidence
* Presumed/Punitive Damage by Actual Malice
—
Private citizen with public concern/Media
* Actual Damage by Negligence
* Presumed/Punitive Damage by Actual Malice
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Private with private concern:
* Strict Liability for actual damages
* Strict Liability for Presumed Damages/Punitive Damages
