Torts Flashcards
2 general propositions for intentional torts.
- There are no incapacity defenses. Individuals who lack legal capacity in other branches of the law are liable for tortious conduct. (insane, drunk, children). 2. All of the intentional torts require proof of intent as an element.
Transferred Intent general rule:
Applies only where the defendant intends to commit a tort against one person but instead:
1. commits a different tort against that person,
2. commits the same tort as intended but against a different person, or
3. commits a different tort against a different person.
In such cases, the INTENT TO COMMIT A TORT AGAINST ONE PERSON IS TRANSFERRED TO THE OTHER TORT OR TO THE INJURED PERSON for purposes of establishing a prima facie case.
To establish a prima facie case for battery, the following elements must be proved:
- An act by the defendant which brings about HARMFUL OR OFFENSIVE CONTACT to the plaintiff’s person;
- INTENT on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and
- CAUSATION.
What is a harmful contact in battery?
A contact that impairs the body–bleed, breaks bone, sends you to the hospital.
What is offensive contact in battery?
Contact violates a REASONABLE sense of personal dignity. Ask whether or not this contact would be unpermitted by a normal person. Do not honor eccentricities.
What is “contact with plaintiff’s person” for purposes of battery?
Plaintiff’s person includes anything the plaintiff is touching or holding. Purse, dog on leash. Object must be connected to person, even if very intimate object–prosthetic limb.
What is the status of instantaneous contact in a battery?
Does not need to be instantaneous such as hitting. “Caused a harmful bodily contact.” So poison works. Poison contacts mouth.
To establish a prima favor case for assault the following elements must be proved:
- An act by the defendant creating REASONABLE APPREHENSION in plaintiff of IMMEDIATE HARMFUL OR OFFENSIVE CONTACT to plaintiff’s person;
- INTENT on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff’s person; and
- CAUSATION.
- Defendant must place the plaintiff in apprehension of an immediate battery.
What does apprehension consist of?
Apprehension is a legal word–mean knowledge of, not fear as it would in everyday speech. This tort does not require fear. Shrimpy guy can assault a big muscular guy, even though the muscular guy is not afraid. Also, the unloaded gun problem involves a threat to commit a battery by a defendant who is bluffing. If the plaintiff knows that the gun is unloaded (it is a bluff or the defendant is impotent and cannot do the battery) then plaintiff will lose. If the plaintiff doesn’t know one way or the other, you are allowed to recover, as long as it is reasonable to believe there would be a battery. “Apparent ability is sufficient to trigger an apprehension of a battery.”
In order to satisfy the requirement for assault that the apprehension relate to an immediate battery, what is needed?
Words alone lack immediacy. A pure verbal threat unaccompanied by any conduct is not enough to make out an assault. The words may sound immediate, but there must be conduct accompanying it. If hands are in pockets while you make verbal threat, no assault. Even if words speak in time frame of seconds. The conduct is usually the display of a weapon or can be shaking a fist in someone’s face. Also, even if have conduct, accompanying words can negate immediacy. Words are in some way conditional: if you ___ I will beat the crap out of you (accompanied by menacing gesture). OR Promising action in the future: tomorrow I am going to beat you up.
To establish a prima facie case for False imprisonment the following elements must be proved.
- An act or omission to act on the part of the defendant that confines or restrains plaintiff to a bounded area;
- Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and
- Causation.
Sufficient methods of confinement or restraint for false imprisonment. (6)
- Physical barriers;
- physical force directed at plaintiff or a member of his immediate family or his property;
- direct threats of force to the plaintiff’s person or property or against persons of the plaintiff’s immediate family;
- indirect threats of force, i.e., acts or words that REASONABLY imply that the defendant will use force against plaintiff’s person or property or plaintiff’s immediate family. (threat must be credible);
- Failure to provide means of escape: where plaintiff has lawfully come under the defendant’s control and it would be impossible to leave without defendant’s assistance (and it was understood between the parties that assistance would be forthcoming), the withholding of such assistance with the intent to detain the plaintiff will make defendant liable. Courts impose an AFFIRMATIVE DUTY on the defendant to take steps to release the plaintiff.
- Invalid Use of Legal Authority
NOTE: An act of restraint only counts if the plaintiff knows of it at the time or suffers some harm as a result. (Lock door when you are asleep and unlock it before you wake up.)
What is a bounded area for false imprisonment?
For an area to be “bounded,” the plaintiff’s freedom of movement in ALL DIRECTIONS must be limited; e.g., merely blocking plaintiff
s access to a portion of a park does not constitute false imprisonment. The area will NOT be characterized as “bounded” if there is a REASONABLE MEANS OF ESCAPE of which the plaintiff is aware or can reasonably discover. A way out that is dangerous, disgusting, humiliating or hidden, it is not a reasonable means of escape.
To establish a prima facie case for Intentional Infliction of Emotional Distress the following elements must be proved.
- An act by defendant amounting to EXTREME and OUTRAGEOUS CONDUCT;
- Intent on the part of defendant to cause plaintiff to suffer SEVERE emotional distress, or RECKLESSNESS as to the effect of defendant’s conduct;
- Causation; and
- Damages–severe emotional distress.
NOTE: this tort is the only one that doesn’t need to be intentional. Can be reckless. Ironic that it is the only intentional tort with the word intentional in its name.
Extreme and outrageous conduct element in IIED:
- Some courts reluctant to recognize tort. This tort covers those situations where the defendant intentionally “shocks” the plaintiff but there is no physical injury or threat thereof. Some states reluctant to recognize this as a cause of action because of the difficulty of proving “shock” (and the ease with which it could be falsified), the speculative nature of the damage, and fear of a flood of litigation.
- Liability Limited by Requiring Proof of Outrageous Conduct. To protect against potential abuses, the courts will limit liability for this tort to those situations where “outrageous conduct” on the part of the defendant is proved. Outrageous conduct is CONDUCT THAT TRANSCENDS ALL BOUNDS OF DECENCY tolerated by society. In the absence of such conduct by the defendant, it is generally held that an average person of ordinary sensibilities would not suffer the kind of severe mental injury that is contemplated by the tort.
What are 2 examples of conduct that can not be outrageous.
- insults alone are not outrageous. 2. if someone is exercising first amendment rights–engaging in protected speech on a matter of public debate–that is not protected. Example–Phelps protesting at military funerals.
3 special rules for outrageous conduct in IIED
- continuous or repetitive conduct. 2. if a defendant is a common carrier or innkeeper, it is easier to label conduct as outrageous because they are held to a higher duty of courteousness (must be intentional or reckless behavior). 3. the plaintiff is a member of a fragile class of persons: child, elderly, pregnant women. Defendant is liable if the plaintiff has a special sensitivity and the defendant knows about it and exploits it.
criteria for element of plaintiff suffering severe emotional distress in IIED
- Don’t have to prove an specific set of facts to show severe emotional distress 2. They test on this by negating the element in the body of the problem–write a long fact pattern about outrageous conduct of defendant and then near the end they will say that plaintiff was “mildly annoyed” or “slightly disturbed” or briefly distracted”
To establish a prima facie case for trespass to land the following elements must be proved:
- An act of PHYSICAL INVASION of plaintiff’s real property by defendant.
- Intent on defendant’s part to bring about a physical invasion of plaintiff’s real property; and
- Causation.
Physical invasions in trespass–3 ways to satisfy this element.
- Defendant enters the property. Do not need to know that he crossed a boundary line. Where’s the intent? He got to the location intentionally. The law demands that we all know where the boundary lines are. Buy a map. If you don’t buy a map you will be responsible.
- Defendant need not enter onto Land; e.g. trespass exists where defendant floods plaintiff’s land, throws rocks onto it, or chases a third person onto it. Even if no damage, can get nominal damages.
- Lawful Right of Entry Expires:
NOTE: Must be tangible, physical invasion. Obnoxious forces do not constitute trespass. Light, sound, odors do not count. These are nuisances or a case of strict liability if ultrahazardous activities are involved.
What does it mean to say that plaintiff must be a possessor of land to bring a trespass to land action:
An action for trespass may be maintained by anyone in actual or constructive possession of the land. This is so even if the possession is without title. If no one is in possession, the true owner is presumed in possession and may maintain the action.
If the action is maintained by a lessee, some decisions allow him to recover only to the extent that the trespass damages the leasehold interest. Other cases allow a full recovery for all damage done to the property, but require the lessee to account to the lessor for excess over damages to the leasehold.
To establish a prima facie case of Trespass to chattels the following elements must be proved:
- An act of defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION in the chattel;
- INTENT TO PERFORM THE ACT bringing about the interference with plaintiff’s right of possession;
- CAUSATION; and
- DAMAGES.
Personal property is what?
All your stuff. Everything you own except land and buildings. Includes vehicles, electronics, clothing, jewelry, money.
Defendant can interfere with your property for purposes of trespass to chattels generally in two ways:
- Intermeddling: conduct by defendant that in some way serves to directly damage plaintiff’s chattels, e.g., denting plaintiff’s car, striking plaintiff’s dog (Damaging the property).
- Dispossession: conduct on defendant’s part serving to dispossess plaintiff of his lawful right of possession (Stealing the property).
What is the difference between the tort of conversion and trespass to chattels.
The degree of interference. Significant–conversion. Minor–trespass to chattels.
The longer the withholding period and the more extensive the use the more serious it is.
Why is the distinction between conversion and trespass to chattels important?
The remedies: in a conversion the plaintiff is entitled to recover the full value of the asset. Trespass to chattels: cost to repair. This is why it is sometimes said that conversion is a forced sale–the defendant has to pay the full price for the object. You intentionally broke it you bought it.
Affirmative defenses of intentional torts.
- Consent. 2. Protective privileges 3. Necessity doctrines.
Consent.
A defense to all 7 intentional torts. Must determine if plaintiff has legal capacity. Only a person with legal capacity can give consent. This rule is the opposite of the rule as to who can be held liable for an intentional tort. So the victim is the one who must consent. A drunk will be liable if he hits you, but you will be liable if you hit a drunk who consents.
Children can consent to age appropriate behavior. Two boys agree to wrestle with one another–valid consent. Cannot consent to surgery. As children get older and older the range of things they can consent to is more and more.
2 different kinds of consent.
- Express consent. 2. Implied consent.
What is express consent.
a declaration giving the defendant permission to behave in a certain way.
When is express consent void?
If obtained through duress or fraud. Fraud does not need to involve an affirmative lie. Can involve a concealment. Example: casual sexual hookup–but one doesn’t share the fact that they have a disease. No consent.
Subcategories of implied consent.
- Implied consent from custom or usage. example–if you go to the barber it is assumed that you will get your hair cut. When you play football you consent to getting pushed down. 2. Implied consent based on defendant’s reasonable interpretation of plaintiff’s objective conduct. We are all allowed to read the situation and make common sense inferences. Body language consent. This doctrine of consent is based on reasonableness.
Scope of consent.
All consent, express or implied, has a scope. If the defendant exceeds the scope, the defendant is liable for the tort.
Protective privileges
- Self defense. 2. Defense of others. 3. Defense of property.
When can a defendant use the protective privileges? (3)
- Imminence. When responding to a threat that is imminent or in progress. Cannot be a threat of something that is going to happen in the future or has already happened in the past. Must act in heat of moment. Key point–no revenge. 2. Must have reasonable belief that the threat is genuine. Reasonable mistake does not defeat the privilege. 3. Can only use the amount of force necessary to respond to the threat involved. If you use excessive force, that is a tort. Can’t stick a knife in someone who is about to slap you. Can use deadly force if someone is about to kill another person (probably gun). But deadly force is never allowed to protect property. So therefore cannot use deadly mechanical device either.
What are the necessity doctrines?
A person may interfere with the real property of another where the interference is reasonable and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Only apply to the property torts: trespass to land, trespass to chattels, conversion. 2 doctrines: public necessity defense and private necessity defense.
What is public necessity defense?
Where the act is for the public good, the defense is absolute.
The defendant invades the plaintiff’s property in an emergency to protect the community as a whole or a significant group of people. What you will see is a fact pattern where there is crisis in progress, like a fire or flood. Or a crazed gunman. A hero comes in–someone who can walk away and doesn’t have to get involved. They take some step to mitigate the crisis, but he must use something that belongs to someone else and he damages or destroys it. Policy: don’t want the savior of the city to hesitate. Also, property can be insured.
What is private necessity defense?
Where the act is solely to benefit a limited number of people, the defense is qualified; I.e., the actor must pay for any injury he causes. Exception: the defense is absolute if the act is to benefit the owner of the land.
Defendant invades plaintiff’s property to protect an interest of his own. Can be to protect own physical safety or to protect his property.
Practical considerations: 3 interrelated consequences of private necessity.
- In a private necessity fact pattern the defendant remains liable to actual damage done to the property. Actual damages (compensatory damages). 2. Private necessity defendant has no liable for nominal or punitive damages. 3. As long as the emergency continues, the plaintiff property owner cannot throw the defendant off his land. Cannot eject, evict, or expel. Have a right of sanctuary.
To establish a prima facie case of Defamation, the following elements must be proved:
- DEFAMATORY LANGUAGE on the part of the defendant;
- The defamatory language must be “OF OR CONCERNING” THE PLAINTIFF, I.e., it must identify the plaintiff to a reasonable reader, listener, or viewer;
- PUBLICATION of the defamatory language by the defendant to a third person; and
- DAMAGE TO THE REPUTATION of the plaintiff
Where the defamation refers to a public figure or involves a matter of public concern, two additional elements must be proved as part of the prima facie case:
- FALSITY of the defamatory language; and
- FAULT on defendants part.
What is defamatory language?
Defamatory language is language that tends to adversely affect one’s reputation. This may result from impeaching the individual’s honesty, integrity, virtue, sanity, or the like.
Minor rules: 1. name calling is not defamatory. 2. Generally need a statement that is a representation of fact.
Defamatory statement must be “of or concerning” the plaintiff–how is this done?
The plaintiff must establish that a REASONABLE reader, listener, or viewer should understand that the defamatory statement referred to the plaintiff.
Who can you commit the tort of defamation against?
- Individual: Any living person may be defamed. Defamation of a deceased person is not actionable.
Test is alive at the time the statement is made. - Corporation, Unincorporated Association, and Partnership: In a limited sense may also be defamed, e.g., by remarks as to its financial condition, honesty, integrity, etc.
Publication of defamatory statement means what?
A statement is not actionable until there has been a “publication.” The
publication is satisfied when there has been a COMMUNICATION TO A THIRD PERSON WHO UNDERSTOOD IT.
Note:
must be to one person who is not the plaintiff because the harm must be harm to reputation. The more people the defendant tells this to the more harm and the more damages.But in terms of whether you have enough to get to a jury, it is enough that the statement was shared with somebody who is not the plaintiff. The publication does not have to be deliberate. It can be negligent.
Damages of defamation (damage to plaintiff’s reputation): general rule
In ascertaining whether this element of the plaintiff’s prima facie case has been satisfied, it may be necessary to distinguish between libel and slander. The burden of proof as to damages (to plaintiff’s reputation) may depend on this distinction.
Libel: defined
Libel is a defamatory statement recorded in WRITING OR some OTHER PERMANENT FORM. A libel may also be recorded by radio or television in some circumstances (most courts regardless of whether it was scripted).
Slander: defined
Slander is SPOKEN DEFAMATION. It is to be distinguished from libel in that the defamation is in less permanent and less physical form.
Slander Per Se: four categories
- Business or Profession; 2. Loathsome disease; 3. Crime involving Moral Turpitude; 4. Unchastity of a Woman
Affirmative defenses for defamation.
- Consent. 2. Truth: the statement that was made is factually accurate. Because it is an affirmative defense the defendant bears the burden of proof. 3. Affirmative privileges: absolute and qualified.
Absolute privileges turns on what?
Who the defendant is: 1. spouses communicating with one another; 2. officers of the three branches of government engaged in official duties (most important is judicial area–includes lawyers and witnesses); 3. members of the media for reports of public proceedings.
Qualified privilege for defamation is based on what? (overarching rule)
Why it was said. A qualified privilege arises when there is a public interest in encouraging candor. Open ended test: case by case. Letters of recommendation or other forms of reference. A reference is only useful if it is candid. Statements made to police: social interest in promoting candor.
Practically, what 2 conditions must be observed for qualified privilege?
- the defendant must speak in good faith (reasonable belief in the truth of the statement); 2. must confine yourself to relevant matters.
Public concern case of defamation means what?
When a defendant’s statement relates to a matter of public concern (general interest to the population at large).
In a matter of public concern, what must the plaintiff prove for a defamation case?
Plaintiff obligated to prove 2 extra elements: 1. statement is false–presumes statement is true; 2. fault–proof that defendant made the statement not in good faith If the defendant is a public figure, fault can only be shown if knew that statement was false or was reckless in investigating the truth of the statement. Also known as malice.
Invasion of the Right to Privacy includes what?
- Appropriation; 2. Intrusion; 3. False Light; 4. Disclosure
To establish a prima facie case for invasion of privacy–appropriateion of plaintiff’s picture or name–what must be proved.
Only one element need be proved: UNAUTHORIZED USE by defendant of plaintiff’s picture or name for defendant’s COMMERCIAL ADVANTAGE.
Example: cereal manufacturer puts photo of star athlete on cereal box without permission.
To establish a prima facie case of invasion of the right to privacy–intrusion on the plaintiff’s affairs or seclusion–the following elements must be proved:
- ACT OF PRYING OR INTRUDING on the affairs or seclusion of the plaintiff by the defendant;
- The intrusion is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON; and
- the thing to which there is an intrusion or prying is “PRIVATE.”
Examples: electronic surveillance; to peer in someone’s window or to eavesdrop.
NOTE: 1. plaintiff must be in a place where you have a reasonable expectation of privacy (clearly have in own home, probably in car with respect to certain things and not to others, probably in hotel room if hotel videotaping you. 2. no requirement that the defendant enter upon the plaintiff’s property in order to have an intrusion–telescope looking in neighbor’s window.
To establish a prima facie case for invasion of privacy–publication by defendant of facts placing plaintiff in a false light–the following elements must be proved:
- Publication of FACTS about plaintiff by defendant placing plaintiff in a FALSE LIGHT in the public eye;
- The “false light” is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON under the circumstances; and
- MALICE on the part of defendant where the published matter is in the PUBLIC INTEREST.
To establish a prima facie case for invasion of privacy–public disclosure of private facts about plaintiff–the following elements must be proved:
- Publication or public disclosure by defendant of PRIVATE information about the plaintiff; and
- The matter made public is such that its disclosure would be HIGHLY OFFENSIVE TO A REASONABLE PERSON.
Exam caution: 1. newsworthiness exception. 2. Facts in question must be truly private and intimate in order to have a cause of action. In bar exam they will often have a blabbermouth carry information from one social circle to another: Pete is a 24 year old man who is gay and is out with family and friends but not at work. Someone tells the the other employees that he’s gay. No cause of action. Dual life or spheres of life fact pattern.
Affirmative defenses for Privacy torts:
- Consent; 2. The defamation privileges are defenses for false light claims and disclosure claims.
To establish a prima facie case for negligence, the following elements must be proved:
- The existence of a DUTY on the part of the defendant TO CONFORM TO A SPECIFIC STANDARD OF CONDUCT for the protection of the plaintiff against an unreasonable risk of injury;
- BREACH of that duty by the defendant;
- That the breach of duty by the defendant was the ACTUAL AND PROXIMATE CUASE of the plaintiff’s injury; and
- DAMAGE to the plaintff’s person or property.
General duty of care:
A general duty of care is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ORDINARY, PRUDENT, REASONABLE PERSON in that circumstance by taking precautions against creating unreasonable risks of injury to other persons.
No duty is imposed on a person to take precautions against events that cannot be reasonably foreseen.
In addition, certain other facts such as the status of the parties (e.g., owners or occupiers of land) or statutes may limit or extend this general duty.
To whom does one owe a duty: general rule
General rule: Foreseeable Plaintiffs. You owe a duty to foreseeable victims.
The “Unforeseeable” Plaintiff Problem: The Problem
- The Problem: The “unforeseeable” plaintiff problem arises when defendant breaches a duty to one plaintiff and also causes injury thereby to a second plaintff to whom a foreseeable risk of injury might or might not have been created at the time of the original negligent act.
Example: An employee of Defendant negligently aided a passenger boarding the train, causing the passenger to drop a package. The package exploded, causing a scale a substantial distance away to fall upon a second passenger.
What about the duty of care to rescuers?
A rescuer is a foreseeable plaintiff as long as the rescue is not wanton; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Note, however, the firefighter’s rule may bar firefighters and police officers, on public policy of assumption of risk grounds, from recovering for injuries caused by the risk of rescue.
Danger invites rescue. When someone is very distant at the beginning of the story, but they come to the aid of someone, you should have seen that there would be a rescuer.
What is the basic standard of care for negligence action?
Basic standard: The reasonable person in a similar circumstance.
Defendant’s conduct is measured against the reasonable, ordinary prudent person.
What is the standard of care for children?
A majority of courts take the view that a child is required to conform to the standard of care of a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE. This permits a SUBJECTIVE evaluation of these factors.
- Minimum age for Capacity to be Negligent: There is a minimum age for which it is meaningful to speak of a child being capable of conforming his conduct to a standard of care. Most courts, however, do not fix this age at any arbitrary figure. Each case is dealt with in terms of whether there is evidence that the individual child –plaintiff or defendant– has the experience, intelligence, maturity, training, or capacity to conform his conduct to a standard of care. It is unlikely, nonetheless, that a court would view a child BELOW THE AGE OF FOUR as having the capacity to be negligent. Or, to put it another way, it is unlikely that a court would impose a legal duty to avoid injuries to others or himself upon a child who is under four. Children aged 4 and above owe the rest of the world the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. This makes the child’s standard of care the opposite of the default standard of care. It is a prodefendant standard of care. Lenient and flexible. Exception: if the child is engaged in an adult activity, then we do not use the special standard of care–we use the default standard of care. An adult activity includes operating a motorized vehicle.
What is the standard of care for a professional?
The professional must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities.
The professional must also use such superior judgment, skill, and knowledge as he actually possesses. Thus a specialist might be held liable where a general practitioner would not. For medical specialists, a “national” standard of care applies. A modern trend applies a national standard to all physicians.
Unlike the default standard, rather than closing our eyes and thinking about how a hypothetical person would act, we go out into the world and determine how other professionals in that community are acting. The custom of the profession sets the standard of care: to do what is customarily done. The jury will not know what the custom of the profession is. Plaintiff almost always needs an expert witness. Also the idea of a similar community refers to size–rural doctors should be compared to rural doctors–unless you are dealing with a specialist who must have a national comparison.
What four categories does the law divide land entrants into?
- Unknown trespasser–possessor is unaware of this persons presence on the land; 2. known or anticipated trespasser; 3. licensee; 4. invitee
What is the duty of a possessor of land to firefighters and police officers?
Almost always are entering as licensees because of implied permission. They never recover negligence damages for injuries that are inherent risk of job. They are considered to have assumed the risk.
Whenever there is a duty in a premises case the possessor can avoid liability in one of two ways.
- Fix the hazard. 2. Give a warning.
What are statutory standards of care?
Plaintiff may want to use a statute to determine the standard of care–then if prove that defendant violated the statute will treat that as conclusive evidence of a breach. Called negligence per se. Means breach per se.
When will plaintiff be allowed to use statutory care?
- Plaintiff has to show that he is in the class of persons that the statute seeks to protect; 2. plaintiff must show that the accident that actually occurred is in the class of risks that this statute is trying to prevent.
Class of person/class of risk test.
Very common in automobile cases–but on bar exam they tend to stay away from auto cases and make them more exotic.
Two exceptions for even where the two part test is satisfied: 1. if compliance with the statute would have been even more dangerous than violation; 2. if statutory compliance was impossible under the circumstances.
What are duties to act affirmatively?
There are none. You never have to do an activity. It is a free country. This includes a duty to rescue. Olympic swimmer doesn’t have to rescue drowning baby. Exceptions: if there is a relationship between the person in peril and the defendant, that will trigger a duty to rescue. Courts looks for a formal relationship: parties actually have legal labels (employer-employee; innkeeper-guest) Modern trend has been to expand to informal relationships–go to dinner with friend and has heart attack and you know CPR. 2. If the defendant is the one who put the plaintiff in peril, then will have a duty to rescue. The duty to rescue is to rescue reasonably under the circumstances. Reasonableness never requires a defendant to put their life at risk. Don’t have to run into the building–calling the fire department will meet the duty. Rescuer doesn’t mean actual heroics. If a gratuitous rescuer (someone who has not duty) screws it up, you will be liable for negligence. This is why a lot of states of changed it by statute: Good Samaritan statute.
What does Negligent Infliction of Emotional Distress entail?
Defendant engages in negligent act, but no physical trauma to the plaintiff’s body, but plaintiff is upset. Must evaluate the duty standard: default reasonable person, professional, etc. When may plaintiff recover? Three scenarios: 1. Near miss scenario; 2. Bystander; 3. Relationship cases
What is a near miss scenario mean?
Plaintiff was placed in a zone of physical danger by the defendant’s negligence. The defendant did not cause trauma to the body, but he almost did! Upsets the plaintiff. Most courts require a second showing–the distress caused subsequent physical manifestations. (heart attack; miscarriage) modern trend has been to relax this standard: clinical depression.
Bystander scenario means what?
Negligent defendant causes a serious injury or death to X and the death of X makes the plaintiff sad. Conditions for recovery: 1. plaintiff and X must be closely related; 2. plaintiff must see the injury to X as it happens. Bystander claim differs dramatically from state to state: some states include fiancee; some states you can arrive before the victim is removed fro m the scene. If they test on it, they will test on the core case–a blood relative and the distress person will see it as it happens.
What is a Relationship case?
Plaintiff and defendant are in a relationship and the relationship and when defendant acts negligently it puts the plaintiff in distress.
Element #2 in law of negligence is breach. What is that?
Element where the plaintiff must do 2 things: 1. Identify specific behavior of the defendant that was wrongful (can be an affirmative error or an omission–but must be really specific); 2. Plaintiff has to offer a theory as to why the conduct fell below the standard of care. Theory doesn’t have to be sophisticated–can be an appeal to common sense or an appeal to custom.
In terms of law there is only one doctrine we need to address with regard to breach.
Res ipsa loquitor: used by plaintiff who lacks information–does not know what the defendant did wrong. Plaintiff has to show that the accident is of the type NORMALLY associated with negligence. This is a probability test. More often than not, this result is caused by negligence. In cases like medical malpractice, there can be expert testimony. 2. Plaintiff must show that an accident of this type is normally due to negligence of someone in the defendant’s position. Normally shown by evidence that the defendant had control over the injury causing instrumentality. Res ipsa inference gets the case to the jury–but the jury can decide the case either way. THE THING SPEAKS FOR ITSELF
Causation–2 parts
- factual causation 2. proximate causation
Really have nothing to do with one another. But factual causation comes before proximate causation in your analysis.
Factual causation is what?
Establishes a linkage between the breach and the injury. A defendant is never a factual cause. Instead, a breach is a factual cause. Also, do not speak of THE factual cause–speak of A factual cause. All events have an infinite number of causes. But you are only looking at one–the breach.
What is the substantive test for factual causation?
But for the breach, plaintiff would be healthy today. This does not lead you to an inevitable conclusion. Two special cases where don’t use but for test: both involve fact patterns involving multiple defendants.
Multiple defendants and merged causes:
In a merged cause case I have two or more careless defendants, but they are not acting together. Their negligence is operating independent of one another, but the force merge and injure plaintiff. In these cases, the courts do not use the but for test, but use the substantial factor test. Must ask if each breach could have caused the harm by itself. If each breach could have caused the harm by itself, then each breach is a substantial factor and therefore each defendant is liable and the defendants together are jointly liable. Do not have to show that each breach did cause the injury by a preponderance of evidence.
Proximate cause is what?
An argument in which the plaintiff must convince us that liability is fair on these facts and not unduly attenuated. Plaintiff must convince us that what happened was a foreseeable of the breach. “When you committed the careless act, you should have seen this coming.”
2 kinds of proximate cause questions:
- Direct cause case: defendant commits the breach and plaintiff is injured fairly instantly. Liability is not called into question because of delay of time. Rather it would have to do with the surprising nature of what happens. The general rule is if the outcome was farfetched, freakish, or bizarre, then unfair to call it foreseeable and that to find liability is unfair. 2. Indirect cause case: things happen between the event and the injury. Passage of time.
4 cases where we have a settled rule on indirect fact pattern and proximate cause issue. very popular on the bar exam because there is a right answer
- Cases involving intervening medical negligence; the defendant is liable for the enhanced damages–foreseeable that there may be malpractice where medical services are needed; 2. Case involving intervening negligent rescue: defendant is liable for the enhanced damages–foreseeable that rescuers will be attracted and in a small number of cases the rescue will make the situation worse; 3. Intervening reaction or protection forces: defendant liable for enhanced damages. Foreseeable that there will reactions to the negligence and some of those reactions may cause damage. 4. A subsequent disease or accident: defendant liable for enhanced damages. Foreseeable that things can happen when you leave someone in a weakened condition.
In other indirect cause cases, what is the analysis.
You look at the breach and ask what is it about this breach that causes me to label it a breach? What am I worried about. Then shift gaze to plaintiff. If what happened to the plaintiff is a match, then we have liability. If not a match come out the other way.
Eggshell skull principle.
Defendant liable for all injuries suffered by plaintiff even if surprisingly great in scope. Take you victim as you find him. Not limited to negligence–applies to every tort on the exam.
Traditionally there were two defenses to negligence.
- Contributory negligence; 2. implied assumption of risk. Older doctrines but still used in some states and tested.
Modern defense to negligence is doctrine of comparative negligence.
Comparative negligence defense can be raised by showing the plaintiff failed to exercise proper care for his own safety. That means that the plaintiff is not a reasonably prudent person or someone who has failed to obey statutes. The jury is instructed to weigh the fault and assigns each a percentage. There is no law on how that percentage assignment should be done. In jury’s discretion. Subtract plaintiff’s percentage of fault from the whole.
There are two versions of comparative negligence in the US.
On the exam they want you to use pure comparative negligence unless they tell you otherwise. The plaintiff always recovers something even if plaintiff bears most of the fault. The other system is modified or partial comparative negligence: in that system, plaintiff fault under 50% reduces recovery; plaintiff fault over 50% is an absolute bar and the plaintiff recovers zero.
Strict liability categories:
- injuries caused by animals; 2. abnormally dangerous activities; 3. Defective consumer products
Injuries caused by animals distinguished by what categories?
- domesticated animals –you are not strictly liable for your domestic animals except you are strictly liable if you keep a domesticated animal and you have knowledge of its vicious and dangerous propensities–now strictly liable. With dogs, the dogs usually has previously bitten someone. So first bite is negligence and after that it is strict liability. There is no liability at all if the victim is a trespasser on your property.
- Wild animal: always strict liability. Traditional exam trick is to load up the question with the defendants safety precautions–but it doesn’t matter how safe you are.
What are the rules regarding abnormally dangerous activities?
A person is strictly liable for any harm caused by an abnormally dangerous activity. An activity is abnormally dangerous if it creates a foreseeable risk of serious harm, even when reasonable care is exercised. And the activity is not a matter of common practice in the community.
Abnormally dangerous activities that they test on over and over:
- blasting; 2. use of highly dangerous, toxic easily dispersed chemical; 3. nuclear energy or radiation.
Dangerous consumer products: variety of theories
- Negligence; 2. Breach of warranty claim; 3. fraud. In the question they will often say the theory.
strict liability claim for an injurious product is available for all kinds of products, but it also covers what?
industrial products
In order to recover on a strict liability product liability claim, must prove four elements:
- defendant must be a merchant (someone who ordinarily deals in goods of this type); 2. proof that the product is defective; 3. show that product has not been altered since it left the defendant’s hands; 4. plaintiff must show that making a foreseeable use of the product at the time of the injury.
Who are merchants?
(someone who ordinarily deals in goods of this type); Casual sellers–people like you and me–who are selling stuff on ebay or craigslist. We are not merchants, so cannot be strictly liable.
Service providers are not merchants–just repair your goods. Lessors: they are considered merchants and they can be strictly liable. A lessor deals in goods of this type–like a rental car company. Every party in the distribution chain is considered a merchant and every party is vulnerable to a strict liability claim. No requirement of privity of contract–you have a claim with everyone in the chain.
Proof that product is defective
In real world this is where the action, but on the MBE, this element is often stipulated. On an essay question you are likely going to have to do the analysis: 3 kinds of product defects: 1. manufacturing defect; 2. design defect; 3. warning defect
Manufacturing defect
product has a manufacturing defect if it differs from all the other products that came off the assembly line and it differs in a way that is more dangerous than the other products. An anomaly–an irregular.
Design defect
product has a design defect when it could have been build differently–a hypothetical alternative design. Hypothetical alternative design posited by the plaintiff must be safer than the version actually marketed. It must be economical–has to cost about the same as the version or only a teeny bit more. It must be practical–cannot undermine the utility of the product. If plaintiff shows the existence of the hypothetical alternative design, then the original design is defective. If there is a government regulation governing how the product should be built, failure to conform to the regulation, the lack of conformity proves a design defect. With design defect, all the units made are bad. So the extent of potential liability is much greater. If a product has a design defect, you cannot avoid liability by slapping a warning on it.
Warning defect
If product has residual risks that cannot be designed out and are not obvious to the user, that product is defective if it does not contain adequate warning and instruction about those risks. A warning must be ADEQUATE.
Alteration of product
presumed satisfied if the product moved in ordinary channels of distribution.
foreseeable use of product at time of the injury
many misuses of products are nonetheless foreseeable. Just because the plaintiff is misusing does not mean we deny him recovery. If misuse is foreseeable, then still liable.(using a chair as a step stool)
Affirmative defenses for strict liability.
Use comparative fault.
Nuisance
A type of harm–the interference with plaintiff’s ability to enjoy real estate to an unreasonable degree. Can be committed intentionally, negligently or without any fault. Courts try to balance the interests: plaintiffs right to be free from nuisance with defendant’s right to use property as he wants. It is not a defense that a plaintiff came to the are after the defendant came to the areas after the activity. Factory does not have right to appropriate the property without buying it.
Vicarious liability.
Arises when somebody commits a tort (tortfeasor) and plaintiff want to hold someone else liable. Rational basis for this is that there is a relationship between the tortfeasor and the third party: 1. employer-employee. 2. Hiring party and independent contractor; 3. automobile owner and automobile driver; 4. parents and children
employer-employee
Committed within the scope of employment. Intentional torts are generally outside the scope of employment–but not an absolute rule. Exceptions: if job involves use of physical force, then intentional torts are in the scope of employment. Nightclub bouncer. Job is one that generates friction–debt collector or repo man. Any tort that directly serves the boss’s interest.
Hiring party and independent contractor
no vicarious liability.
automobile owner and automobile driver
no vicarious liability for those who borrow the car. Exception: if you are doing an errand for me in my car, then you are my agent and I’m vicariously liable.
parents and children
parents are not vicariously liable for the torts of your kids. No exceptions.
Joint tortfeasor issues.
From whom can the plaintiff recover–defendants are jointly liable–can recover all of the money from any plaintiff. Once one of the defendant’s has paid the plaintiff, what can the defendant get back from other defendants? Jury assigns percentages.
Indemnification
to get all of your money back–to be held harmless. 1. vicariously liable party can be indemnified by the active tortfeasor; 2. a non manufacturer in a strict products case can get indemnity from the manufacturer.
Loss of consortium claims.
If the victim of any tort is married, the uninjured spouse gets a separate and additional cause of action in his and her own name. It is derivative. Any defense that can be asserted against the injured spouse will be available against the consortium plaintiff. What are you recovering for: 1. money for loss of services; 2. loss of society–companionship; 3. loss of sex.
What is insufficient methods of confinement or restraint for false imprisonment?
- moral pressure; 2. future threats.
How long must a person be restrained or confined for a false imprisonment claim?
Irrelevant how short the period of confinement is.
What is the interest protected by the tort of trespass to land?
The interest in exclusive possession of realty.
What constitutes land in a trespass to land case?
The trespass may occur on the surface of the land, below the surface, or above it. Courts generally construe plaintiff’s “land” to include air space and subsurface space to the height or depth plaintiff can make beneficial use of such space. Thus, for example, one could commit a trespass by stringing wires over the land, flying an airplane at low altitudes over it, tunneling under it, etc.
Intent required for Trespass to Land
Mistake as to the lawfulness of the entry is no defense as long as defendant intended the entry upon that particular piece of land.
Causation for Trespass to land:
The physical invasion of plaintiff’s property must have been legally caused by the defendant’s act or something set in motion thereby.
Damages for Trespass to land:
No requirement of damages. As with most other intentional torts, damage is presumed; i.e., actual injury to the land is not an essential element of the cause of action. Can get nominal damages.
Examples of Outrageous Conduct: 3
- Extreme Business Conduct: Certain methods of business conduct may be construed as outrageous conduct, e.g., use of extreme methods of collection, if repeated may be actionable;
- Misuse of Authority: Misuse of authority in some circumstances is actionable, e.g., school authorities threatening and bullying pupils.
- Offensive or Insulting Language: Generally, offensive or insulting language will not be characterized as “outrageous conduct.” This result could change if there is a SPECIAL RELATIONSHIP between plaintiff and defendant or a SENSITIVITY on plaintiff’’s part of which defendant is aware.
Examples of Invalid Use of Legal Authority for false imprisonment claim:
- False arrests;
2. “Shoplifting” Detentions Are Privileged
False arrest for false imprisonment claim:
An action for false imprisonment does not lie for an arrest or a detention made by virtue of legal process duly issued by a court or official having jurisdiction to issue it. However, where an arrest by a police officer or private citizen for a criminal offense without a warrant is unlawful (i.e., not privileged), it may constitute false imprisonment.
When arrests are privileged so as not to constitute false arrest:
- Felony arrests without warrant; a felony arrest without a warrant by a police officer (or a private citizen acting at the officer’s direction) is valid if the officer has REASONABLE GROUNDS to believe that a felony has been committed and that the person arrested has committed it. Such an arrest by a PRIVATE PERSON will be privileged only if a felony has IN FACT been committed and the private person has reasonable grounds for believing that the person arrested has committed it.
- Misdemeanor Arrests without a Warrant: Both police officers and private citizens are privileged for misdemeanor arrests without a warrant if the misdemeanor was a BREACH OF THE PEACE and was committed in the presence of the arresting party. (Note that in most states, police officers have a broader statutory privilege of arrest for ANY misdemeanor committed in their presence.)
- Arrests to Prevent a Crime without a Warrant: Where a felony or breach of the peace is in the process of being, or reasonably appears about to be, committed, both police officers and private citizens are privileged to make an arrest.
How much force is allowable for an arrest to not be unlawful?
- Felony Arrest: both police officers and private citizens may use that degree of force reasonably necessary to make the arrest; however, deadly force is permissible only when the suspect poses a threat of serious harm to the arresting party or others.
- Misdemeanor Arrest: both police officers and private citizens are privileged to use only that degree of force necessary to effect the arrest, but never deadly force.
Shoplifting detentions: rules
Shoplifting detentions are privileged (by statute in some states and by caselaw in others) when the following conditions are satisfied:
- There must be a REASONABLE BELIEF as to the fact of theft;
- The detention must be conducted in a REASONABLE MANNER and only nondeadly force can be used; AND
- The detention must be only for a REASONABLE PERIOD OF TIME and only for the purpose of making an investigation.
Causation for purposes of battery:
The defendant is liable not only for “direct” contact, but also for “indirect” contact; i.e., it will be sufficient if he SETS IN MOTION A FORCE that brings about harmful or offensive contact to the plaintiff’s person.
Limitations on Use of Transferred Intent:
Transferred intent may be invoked only where the tort intended and the tort that results are both within the following list:
- Assault;
- Battery;
- False Imprisonment;
- Trespass to land; and
- Trespass to chattels.
To establish a prima facie case of conversion, the following elements must be proved:
- An act by defendant INTERFERING with plaintiff’s right of possession in the chattel that is SERIOUS ENOUGH in nature or consequence to warrant that the defendant PAY THE FULL VALUE OF THE CHATTEL;
- INTENT to perform the act bringing about the interference with plaintiff’s right of possession; and
- CAUSATION.
Acts of conversion:
- Wrongful acquisition, e.g., theft, embezzlement
- Wrongful transfer, e.g., selling, misdelivering, pledging
- Wrongful detention, e.g., refusing to return to owner
- Substantially changing
- Severely damaging or destroying
- Misusing the chattel.
Intent required for conversion:
The only intent required is the intent to perform the act that interferes with the plaintiff’s rights of possession. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature.
BONA FIDE PURCHASER of chattel may become a converter if the chattel had been stolen from the true owner.
ACCIDENTAL CONDUCT INSUFFICIENT unless the actor was using the chattel without permission when the accident occurred (actor may be liable for negligence).
Property subject to conversion:
Limited to tangible PERSONAL PROPERTY and INTANGIBLES that have been REDUCED TO PHYSICAL FORM (e.g., a promissory note), and documents in which title to a chattel is merged (e.g., a bill of lading or a warehouse receipt). Intangibles such as a bakery route, customer lists, or the goodwill of a business may not be the subject of conversion. Neither may real property be converted.
Who may bring an action for conversion?
Anyone with possession or the immediate right to possession may maintain an action for conversion. Possession is viewed as sufficient title against a wrongdoer. However if the person in possession is not the true owner, she is accountable to the true owner for any recovery to the extent of the owner’s interest.
Causation for conversion:
The interference with the plaintiff’s chattel interests must have been legally caused by the defendant’s act or something set in motion thereby.
Basic conversion remedies:
- Damages: Plaintiff is entitled to damages for the FAIR MARKET VALUE of the chattel. This value is generally computed as of the TIME AND PLACE OF CONVERSION. The defendant is given title upon satisfaction of the judgment so that, in effect, there is a forced sale of chattel. Note that even if the defendant wishes to return the item, the plaintiff is not obligated to take it back once it has been converted.
- Replevin: If the plaintiff wishes to have the chattel returned, he may get it by availing himself of the remedy of replevin.
Intent required for trespass to chattels:
Mistake as to the lawfulness of defendant’s action (e.g., a mistaken belief that defendant owns the chattel) is NO DEFENSE to an action for trespass to chattels. Again, as with trespass to land, the intent to trespass is not required–intent to do the act of interference with the chattel is sufficient.
Who may bring trespass to chattels actions?
Anyone with possession or the immediate right to possession may maintain an action for trespass to chattels.
Causation for purposes of trespass to chattels:
The interference with plaintiff’s possessory interests in the chattel must have been caused by defendant’s act or something set in motion thereby.
Damages for trespass to chattels:
ACTUAL DAMAGES REQUIRED. As a general rule, nominal damages will not be awarded for trespass to chattels; i.e., in the absence of any actual damages, an action will not lie. However if the trespass amounts to a dispossession, the loss of possession itself is deemed to be an actual harm.
Defamation: Inducement and Innuendo
If the statement standing alone is defamatory “on its face.” However, a statement is also actionable if the defamatory meaning becomes apparent only by adding extrinsic facts. The plaintiff pleads and proves such additional facts as inducement and established the defamatory meaning by innuendo. Inducement and innuendo identify to the courts and the parties that extrinsic facts are being introduced to the court by the plaintiff to establish the first element of a prima facie case.
Methods of Defamation
Not all defamation consists of direct remarks. Pictures, satire, drama, etc., may convey an actionable defamatory meaning.
Defamation: Statements of Opinion
While a statement of fact may always be defamatory, a statement of opinion is actionable only if it appears to be based on specific facts, AND an express allegation of those facts would be defamatory.
Defamation: Distinguishing Fact and Opinion
Whether a published statement is one of fact or opinion depends on the circumstances surrounding the publication and the nature of the words used. Generally, the broader the language used, the less likely that it will be reasonably interpreted as a statement of fact or opinion based on specific facts
Defamation: Colloquium
A statement may be actionable even though no clear reference to he plaintiff is contained on the face of the statement. In such a case, the plaintiff is required to introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. Pleading and proving such extrinsic facts to show that the plaintiff was intended is called “colloquium.”
Group defamation
- ALL MEMBERS OF A SMALL GROUP: Where the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning h by alleging that he is a member of the group.
- ALL MEMBERS OF A LARGE GROUP: If the defamatory statement refers to all members of a large group, member of that group may establish this element of the cause of action.
- SOME MEMBERS OF A SMALL GROUP: Where the defamatory language refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.
Defamation: Intent
Once publication is established, it is no defense that defendant had no idea that she was defaming plaintiff because she neither knew or had reason to know that plaintiff existed (use of fictional name), nor knew that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent.
Defamation: repetition
Each repetition of the defamatory statement is a separate publication for which the plaintiff may recover damages.
Defamation: Single Publication Rule
All copies of a newspaper, magazine, or book edition are treated as only one publication. The publication is deemed to occur when the finished product is released by the publisher for sale. Damages are still calculated on the total effect of the story on all of its readers.
Defamation: Who may be liable
- Primary publisher
- Republisher
- Secondary publishers
Defamation: primary publisher
Each individual who takes part in making the publication is charged with the publication as a primary publisher.
Defamation: Republisher
A republished (one who repeats a defamatory statement) will be held liable on the same general basis as a primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation.
Note: where there has been republication, the original defamer’s liability may be increased to encompass any new harm caused by the repetition if the republication was either 1. Intended by the original defamer or 2. Was reasonably foreseeable to her.
Defamation: secondary publishers
One who is responsible only for disseminating materials that might contain defamatory matter (e.g., vendor of newspapers, player of tape) is viewed as a secondary publisher. Such individuals are liable Only if they know or should know of the defamatory content.
Qualified privilege for defamation: defined
In certain situations, a speaker may say something defamatory without being liable because of the existence of a qualified privilege.
Qualified privilege for defamation: situations (list)
- Reports of Public Proceedings
- Public Interest
- Interest of Publisher
- Interest of Recipient
- Common Interest of Publisher and Recipient
Qualified privilege for reports of public proceedings:
There is a qualified privilege for reports of public hearing or meetings. This includes judicial, legislative, or executive proceedings as well as other proceedings of sufficient public interest, e.g., political convention, trade association meeting, etc.
The privilege EXCUSES ACCURATE REPORTS of statements that were false when made, but it DOES NOT EXCUSE INACCURACIES in the reporting of statements.
Qualified privilege for public interest: 2 kinds (list)
- Publication to one acting in Public Interest
- Fair Comment and Criticism
NOTE: generally been preempted by the constitutional requirements imposed by New York Times v. Sullivan and its progeny.
Qualified privilege for publication to one acting in public interest:
Statements made to those who are to take official action of some kind are qualifiedly privileged.
Example: statements made to a parole board about a prisoner by one who opposed the grant of parole are privileged.
Qualified privilege for fair comment and criticism:
One is permitted to make remarks that disparage another’s acts in the course of a critique of public interest, e.g., book reviews, articles on public institutions, etc. The matter commented upon must be of general public interest.
Qualified privilege for interest of publisher:
Where defendant’s statement is made to defend her own actions, property, or reputation, it may be privileged.
Example: A statement by a debtor explaining to a collection agency her reason for not paying a bill is qualifiedly privileged even if defamatory statements are contained therein.
Qualified privilege for interest of recipient:
A qualified privilege is recognized when the recipient has an interest in the information and it is reasonable for the defendant to make the publication, i.e., when she is not the intermeddler.
Examples:
- A statement by a credit bureau to a customer is qualifiedly privileged.
- A statement made by a former employer to a prospective employer about a job applicant is qualifiedly privileged.
Qualified privilege for common interest of publisher and recipient:
Where there is a common interest between the publisher and the recipient, there is a qualified privilege.
Example: A statement by one board member of a charitable foundation, relating to the foundation’s business, to another board member is qualifiedly privileged.
Loss of qualified privilege for defamation through abuse:
A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose. Thus, even though the facts might otherwise give rise to a qualified privilege situation, the actor may have lost this privilege by virtue of his conduct. There are two basic ways in which this generally occurs: 1. Statement Not Within Scope of Privilege; 2. Malice.
Loss of qualified privilege for defamation through abuse: statement not within the scope of privilege
The allegedly protected statement must fall within the scope of the privilege. Hence, the privilege does not encompass the publication of irrelevant defamatory matter unconnected with the public or private interest entitled to protection.
Similarly, the privilege does not cover publication to any person whose hearing or reading of the statement would not reasonably be believed to be necessary for the furtherance of that interest.
Loss of qualified privilege for defamation through abuse: malice
A qualified privilege will be lost if it is shown that the speaker acted with malice. “Malice” here means that the statement was made with 1. KNOWLEDGE that it was untrue or 2. a RECKLESS DISREGARD as to the truth or falsity.
NOTE: At common law, many courts held that malice in the sense of ill will of defendant toward plaintiff would result in loss of the qualified privilege. Most courts no longer define malice in this way, however. As long as the defendant is using a proper occasion for a qualified privilege in a proper way, she will not lose the privilege simply because she bears ill will toward plaintiff.
Qualified privilege for defamation: Burden of proof
The DEFENDANT BEARS THE BURDEN of proving that the privilege exists. If the privilege is qualified, the plaintiff then bears the burden of proving that the privilege has been lost through excessive publication or malice.
Mitigating factors for defamation: list
Several matters, while not defenses to an action, may be considered by the trier of fact on the issue of damages. These include: 1. No actual malice; 2. retraction; 3. anger
Mitigating factors for defamation: no actual malice
Malice may be inferred from some statements, but if the jury is shown that there was no actual malice, such evidence is admissible to mitigate damages. To this end, defendant may prove the source of her information and grounds for her belief.
Mitigating factors for defamation: retraction
Unless made immediately after publication so as to negate the defamatory effect of a statement, retraction does not undo the wrong. But the court may consider it to show LACK OF ACTUAL MALICE in mitigation of damages. A failure to retract after a request to do so is often allowed as evidence of the opposite effect.
Mitigating factors for defamation: anger
Anger of the speaker may be a mitigating circumstance IF PROVIDED by the plaintiff.
Harm to Economic and Dignitary Interests (less tangible harms to a person’s relational interests with other persons in society) include what?
- Defamation; 2. Invasion of Right to Privacy; 3. Misrepresentation; 4. Interference with Business Relations; 5. Wrongful Institution of Legal Proceedings;
Damage rules for libel: list
- General damages presumed; 2. Libel distinction–minority position; 3. Libel per se–presumed damages; 4. Libel per quad–special damages usually required
Damage rules for libel: general damages presumed
In most jurisdictions, general damages are PRESUMED BY LAW for all libels; i.e., special damages need not be established
Damage rules for libel: libel distinction–minority position
A substantial minority of courts distinguish between libel per se and libel per quod in determining whether a libel is actionable without proof of special damages.
Damage rules for libel: libel per se–presumed damages
These courts take the position that injury to the reputation of the plaintiff is presumed by law only if the statement is libelous and defamatory on its face (libel per se). Thus, such libels are actionable without pleading or proving special damages.
Damage rules for libel: libel per quod–special damages usually required
The libelous statement that is not defamatory on its face, but that requires reference to extrinsic facts to establish its defamatory content, is characterized as libel per quod by these courts. These courts generally require special damages to be pleaded and proved for such libels.
Characterizations of repetitions of defamation:
Where the original defamation is libel, any repetition, even if oral, is also libel. On the other hand, the written repetition of a slander will be characterized as libel.
Damages Rule for Slander:
In slander, injury to reputation is NOT PRESUMED. Thus, ordinary slander is not actionable in the absence of pleading and proof of special damages.
Damages rule for slander per se:
If the spoken defamation falls within one of four categories characterized as slander per se, an injury to reputation is presumed without proof of special damages.
Slander per se: Business or Profession
A defamatory statement adversely reflecting on plaintiff’s abilities in his business, trade or profession is actionable without pleading or proof of special damages. Statements that the plaintiff is dishonest or lacks the basic skill to perform his profession or carry out his office are examples of this slander per se category. The statement must, however, directly relate to plaintiff’s profession, trade, or business.
Example: Statement about an engineer stating “he is a terrorist” is not directly related to his trade.
Slander per se: Loathsome Disease
A defamatory statement that the plaintiff is presently suffering from a foul and loathsome disease is actionable without pleading or proof of special damages. Historically, this slander per se category has been limited to venereal disease and leprosy.
Slander per se: Crime involving moral turpitude
A defamatory statement that the plaintiff is or was guilty of a crime involving moral turpitude is actionable without pleading or proof of special damages. Because common law crimes generally are deemed to involve moral turpitude (e.g., assault, larceny, perjury), this category of slander per se incorporates a large number of statements. Thus, the allegation that a married man has a mistress implies that he is guilty of the crimes of fornication and adultery.
Slander per se: Unchastity of a woman
A defamatory statement imputing unchaste behavior to a woman is actionable without pleading or proof of special damages.
General or Presumed damages for defamation
General damages are presumed by law and need not be proved by the plaintiff. They are intended to compensate the plaintiff for the general injury to her reputation caused by the defamation.
Note: Constitutional free speech and press considerations may restrict an award of presumed damages when the defamation involves matters of “public concern.”
Special Damages
Special damages in a defamation law context means that the plaintiff must specifically prove that she suffered PECUNIARY LOSS as a result of the defamatory statement’s effect on her reputation, and are not proved merely by evidence of actual injury–such as the loss of friends, humiliation, or wounded feelings. The loss of a job, prospective gift or inheritance, an advantageous business relationship, or customers are pecuniary losses such as those contemplated by the special damages requirement.
Appropriation of Plaintiff’s Picture or Name: limitations
Liability if generally limited to the use of plaintiff’s picture or name in connection with the promotion or advertisement of a product or service, e.g., use of plaintiff’s picture to advertise an automobile.
The mere fact that defendant is using plaintiff’s picture or name for his own personal profit may not, by itself, be sufficient. Thus, for example, the use of a personality’s name in a magazine story, even if motivated by profit, may not be actionable. (newsworthiness exception–applies to you and me as well as celebrities)
False light: publication or public disclosure element
For liability to attach, there must be PUBLICITY concerning the “false light” facts; this requires MORE than “publication” in the defamation sense.
When will a fact be deemed to present plaintiff in a false light?
If it attributes to him: 1. Views that he does not hold, or 2. Actions that he did not take.
Note: this element involves falsity and, as such, may also involve defamation if the falsity affect reputation.
False light: highly offensive to a reasonable person element
To be actionable, this “false light” must be something that would be highly offensive to a reasonable person under the circumstances.
False light: when is malice necessary?
In Time, Inc. v. Hill, a case involving this particular invasion of privacy branch, the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is in the public interest, unless the plaintiff establishes that the defendant acted with malice. Malice here, as in New York Times v. Sullivan, goes to knowledge of falsity or reckless disregard for the truth. After Gertz and Dun & Bradstreet, the Supreme Court may be expected to give the states a slightly larger scope in which to protect privacy where a public figure is not involved. Thus where the public interest in the information is not overriding and where the risks to the privacy interests of the private person are clear on the face of the material to a reasonably prudent publisher, the Supreme Court may choose in the future to permit an action in privacy without proof of malice in the New York Times sense. However, at least in public figure cases, the Time, Inc. v. Hill requirement of malice still holds.
Defamation: falsity
At common law, a defamatory statement was presumed to be false. The Supreme Court, however, as rejected this presumption in all cases in which the plaintiff is constitutionally required to prove some type of fault. In these cases, the plaintiff must prove as an element of the prima facie case that the statement was false.
EXAM APPROACH: Even where the statement is true, it may nonetheless give rise to liability if it is uttered under circumstances sufficient to constitute intentional infliction of severe emotional distress or invasion of the right of privacy; hence, consider these torts as well as when your exam question presents potentially defamatory statements. However, where the plaintiff is a public figure or the matter is one of public concern, and recovery for defamation would be barred on First Amendment grounds, he will not be allowed to rely on these other tort theories (Snyder v. Phelps 2011)
Defamation: fault on defendant’s part
Although at common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or matters of public concern. The degree of fault to be established depends on the type of plaintiff, i.e., whether he is a public official or public figure as compared with a private person involved in a matter of public concern.
Defamation: public officials
MALICE REQUIRED
A public official may not recover for defamatory words relating to his official conduct in the absence of “clear and convincing” proof that the statement was made with “malice.” (New York Times v. Sullivan 1964)
Defamation: public figures
MALICE REQUIRED
The rule of New York Times v. Sullivan has been extended to cover litigation where the plaintiff is a public figure.
A person may be deemed a “public figure” on one of two grounds: 1. where he has achieved SUCH PERVASIVE FAME OR NOTORIETY that he becomes a public figure for all purposes and contexts (e.g., celebrity sports figure); or 2. where he voluntarily assumes a CENTRAL ROLE in a particular PUBLIC CONTROVERSY (e.g., prominent community activist) and thereby becomes a “public figure” for that limited range of issues (Gertz v. Robert Welch, Inc. 1974)
In Gertz, the Court indicated that it might be possible for a person to become a public figure through no purposeful action of his own, but considered such instances to be “exceedingly rare.” Subsequent cases support this interpretation. (Times v. Firestone 1976; Hutchinson v. Proxmire 1979; Wolston v. Reader’s Digest Association 1979)
Malice: test
Malice was defined by the Supreme Court in New York Times v. Sullivan as:
- KNOWLEDGE that the statement was false, or
- RECKLESS DISREGARD as to its truth or falsity.
Malice: what constitutes “knowledge or reckless falsity?
It must be shown that the defendant was subjectively aware that the statement he published was false or that he was subjectively reckless in making the statement.
- Reckless Conduct–Subjective Standard
“Reckless” conduct is NOT measured by a reasonable person standard or by whether a reasonable person would have investigated before publishing. There must be a showing that the defendant in fact (subjectively) ENTERTAINED SERIOUS DOUBTS as to the truthfulness of his publication. - Spite, etc., Not Enough
It is not enough that the defendant is shown to have acted with spite, hatred, ill will, or intent to injure the plaintiff.
Defamation: alteration of quotation as malice
A journalist deliberately altering a quotation attributed to a public figure can be found to have “knowledge of falsity” if it can be established that the alteration results in a MATERIAL CHANGE IN THE MEANING CONVEYED BY THE STATEMENT. (Masson v. New Yorker Magazine 1991)
Why do private persons not need to prove malice?
Where the defamatory statement relates to a NONPUBLIC person, there is less concern for freedom of speech and press. In addition, private individuals are more vulnerable to injury from defamation because they usually do not have the same opportunities for rebuttal as do public persons. Accordingly, defamation actions brought by private individuals are subject to constitutional limitations only when the defamatory statement involves a matter of “public concern.” And even in those cases, the limitations are not as great as those established for public officials and public figures (Gertz v. Robert Welch, Inc)
When the defamatory statement involves a matter of public concern, Gertz imposes two restrictions on private plaintiffs:
- it prohibits liability without fault; 2. it restricts the recovery of presumed or punitive damages.
Matters of public concern: actual damages defined
The Supreme Court has deliberately chosen to not define this term, but has stated that it is NOT LIMITED TO OUT-OF-POCKET LOSS. It may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering (i.e., an injury to reputation not resulting in special damages may still be actionable.) The important point is that there must be COMPETENT EVIDENCE of “actual” injury (no presumed damages, although there need be no evidence that assigns an actual dollar value to the injury.
Defenses to Defamation: (4)
- Consent; 2. Truth; 3. Absolute Privilege; 4. Qualified privilege
Defenses to Defamation: consent
As with all torts, consent is a complete defense to a defamation action.
Defenses to Defamation: truth
In cases of purely private concern where plaintiff is not required to prove falsity, defendant may establish the truth of the statement as a complete defense.
Matters of public concern: fault rules
Where the statement published is such that its defamatory potential was APPARENT to a reasonably prudent person, the plaintiff must show that the defendant permitted the false statement to appear, if not through malice, at least through NEGLIGENCE as to its truth or falsity.
The Supreme Court has left open the question of what the fault standard would be where the statement published involved NO apparent defamatory potential (i.e., factual misstatements that are innocent on their face and require proof of extrinsic facts to be defamatory, such as libel per quod).
Matters of public concern: damages where there is only negligence
Assuming the defendant was in fact negligent in ascertaining the truth of what it published–but still it had no actual knowledge of the falsity, nor was it guilty of reckless disregard for the truth–damages can be recovered but are limited to the “ACTUAL INJURY” sustained by the plaintiff; i.e., presumed damages are prohibited.
Matters of public concern: damages rule
If the plaintiff cannot prove “actual injury,” he cannot recover any damages, UNLESS he can show that the publication was made with knowledge of its falsity or with reckless disregard for the truth. There is no constitutional protection for publication made with “knowledge or reckless falsity,” and hence, the plaintiff is entitled to whatever recovery is permitted under state law in such cases (i.e., “presumed” or general damages and even punitive damages in appropriate cases.) Note that this approach is simply a restatement of the general rule in torts that damages must be proved in negligence actions but usually are not required where the defendant is more culpable, such as for intentional torts.
