Torts Flashcards
1
Q
7 Intentional Torts
A
(1) Battery
(2) False Imprisonment
(3) Assault
(4) Intentional Infliction of Emotional Distress
(5) Trespass to Land
(6) Trespass to Chattels
(7) Conversion
2
Q
Battery
A
The plaintiff must show that
- the defendant committed a harmful or offensive contact
- contact must be with the plaintiff’s person
3
Q
Harmful/Offensive
A
Harmful: actual physical trauma (injury/death)
Offensive: unpermitted to a person of ordinary sensitivity
4
Q
Extended Personality Rule
A
Person includes anything you’re holding/touching/connected to
5
Q
Assault
A
Defendant must place plaintiff in immediate apprehension of an immediate battery
6
Q
Apprehension
A
Actually means knowledge. You have to see it coming.
You don’t have to be afraid.
Need only a reasonable belief. An apparent ability creates a reasonable apprehension. If it looks like he can do it, believe that he can do it.
7
Q
Unloaded gun problem
A
If you know the gun is loaded= assault
If you know the gun is not loaded= not assault
If you don’t know= assault
8
Q
Immediacy
A
Mere (naked) words ARE NOT sufficient to create immediacy– conduct required!
Talk is cheap, until you make a move, it’s not immediate.
Menacing gesture: picking up a weapon, drawing hand back.
Sometimes words can negate immediacy!
- Conditional words
- Future words
9
Q
False Imprisonment
A
Defendant must commit an act of physical restraint
Plaintiff must be confined in a bounded area.
10
Q
Act of physical restraint
A
Threats are sufficient (threat that would operate on the mind of a reasonable person)
Ex: if you leave, I’ll call the cops
Failure to act can be an act of restraint if there is some pre-existing duty between the people
-Plaintiff must be aware of it/harmed by it
11
Q
Confined in a Bounded Area
A
An area is not bounded if there is a reasonable means of escape that the plaintiff can reasonably discover.
-You’re not locked in if you can get out
If the only way out is danger, disgusting, humiliating, the area is considered banded.
12
Q
Intentional Infliction of Emotional Distress
A
Don’t need to show intent, can show defendant behaved recklessly (utter disregard for plaintiff’s emotional tranquility)
Of the 7 intentional torts, only one that does not require intent is IIED
Defendant must engage in outrageous conduct
Plaintiff must suffer severe emotional distress
13
Q
Outrageous Conduct
A
Conduct that exceeds all bounds of decency tolerated in a civilized society
Negative rule: mere insults are never outrageous regardless of intent
14
Q
Outrageous Conduct: 4 Plus Factors
A
(1) Where conduct is continuous or repetitive
(2) If Defendant is a common carrier or an inkeeper
(3) Where plaintiff is a member of a fragile class of persons (children, elderly people, pregnant women)
(4) If defendant has advance information that plaintiff has some kind of emotional weakness, then targeting that weakness is itself outrageous.
15
Q
Severe Emotional Distress
A
No specific (type)(kind)(category) of evidence is required. Can establish severe distress however you want.
Look for negation of the element in the fact pattern! (i.e. mildly annoyed)
16
Q
Trespass to Land
A
Defendant must commit an act of physical invasion
Invasion must be of plaintiff’s land
17
Q
Physical invasion
A
GO on someone else’s land (on purpose)
Defendant does not have to know that s/he has crossed a boundary line
Your obligation is to know where the boundary is.
Can throw/project something onto the property– the thing you send on the land must be tangible, physical (intangibles– nuisance)
18
Q
Trespass to Land: Must Relate to Land
A
land includes air above and soil below to a reasonable distance.
Airplane is beyond a reasonable distance
19
Q
Trespass to Chattels
A
Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)
A private civil remedy for damaging/stealing your stuff.
Magnitude: slight
Subjective.
Mistake of the item is no defense
20
Q
Conversion
A
Intentional interference with plaintiff’s property
Deliberately damage
Taking it away from you (stealing/robbing)
A private civil remedy for damaging/stealing your stuff.
Magnitude: great
Subjective.
Mistake of the item is no defense
Conversion plaintiffs get special remedy– recovery of FULL market value of item (you break it, you buy it). If you seriously damage it, you bought it.
21
Q
3 Affirmative Defenses to Intentional Torts
A
(1) Consent
(2) Protective Privileges
(3) Necessity
22
Q
Consent
A
A defense to all 7 intentional torts.
Did the plaintiff have legal capacity? This is a sliding scale that turns on the nature of the conduct agreed to.
Can be express (stated, written) or implied
All consent has a SCOPE. If plaintiff exceeds the scope, defendant will be held liable.
23
Q
Express Consent Void
A
If obtained through fraud or duress
Failure to disclose/withholding information can void express consent.
24
Q
Consent Can be Implied…
A
(1) from custom and usage
(2) Based on the defendant’s reasonable interpretation of the plaintiff’s objective conduct (body language consent). In one on one interactions, you are allowed to read the situation. Always has to be reasonable.
25
3 Protective Privileges
(1) Self Defense
(2) Defense of others
(3) Defense of property
All involve defendants responding to threats coming from plaintiff.
26
Protective Privileges: Timing
Threat must be in progress or imminent
Can't be preventative; no preemption
Can't be too late either; no revenge
27
Protective Privileges: Requirement of Accuracy
Defendant must have reasonable belief that the threat is genuine.
Defendant not liable if defendant makes a reasonable mistake
Must limit your response to force necessary under the circumstances
28
Shopkeeper's Privilege
Permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
29
Deadly Force
Can be used to defend yourself, yourself in your home, or a third party
Cannot use to defend property. Can't shoot trespassers
30
Necessity
Only applies to property claims-- trespass to chattels, trespass to land, conversion
2 different defenses:
Public necessity
Private necessity
31
Public Necessity
Defendant commits a property tort in an emergency to protect community as a whole or a significant group of people.
Complete and absolute defense
Emergency usually a pretty big catastrophe threatening pretty serious harm
32
Private Necessity
Defendant commits a property tort in an emergency but to protect himself, his possessions
A partial defense with 3 legal consequences
(1) have to pay for any harm you do (compensatory damages)
(2) if you do no harm, your technical tort is excused and therefore no liability for nominal/punitive damages
(3) if you go on someone's property during an emergency to take refuse, the property owner cannot kick you off their land ("right of sanctuary"
33
Negligence: 4 Elements
Duty
Breach
Causation
Damages
34
Duty
Plaintiff must show defendant owed a duty and specify the nature of the duty
Obligation to take risk reducing precautions as you engage in different activities to avoid injuring others.
35
Duty
Which others? Who do I need to think about
Foreseeable victims-- no duty to unforeseeable victims
Unforeseeable victims always lose.
Foreseeable victims are near you; unforeseeable victims are far away
Zone of danger will vary depending on the activity
36
Breach
Plaintiff must show defendant failed to live up to duty of care and must show this in a very specific way
37
Causation
Actual or proximate
38
Damages
Have to show something bad happened to you
39
Duty: Rescuers
Danger invites rescuers. Rescuers are foreseeable, even if they began outside of the scope of danger.
40
Duty
How much precaution?
You must exercise the same degree of precaution as a hypothetical reasonably prudent person acting under similar circumstances.
41
Reasonably Prudent Person
No physical attributes, but a very specific set of behaviors.
Always locks the doors, always waters the plants. Most people to not live up to this standard most of the time.
OBJECTIVE standard of care. No allowances for defendants particular shortcomings.
--> This means we may be asking the defendant to do the impossible
42
Reasonably Prudent Person: Exceptions
(1) if defendant has superior skill or knowledge, the standard of care includes that superior skill or knowledge
(2) where relevant, look at physical characteristics of defendant. has to be relevant to the situation.
43
6 Special Duty Exceptions/Standards
(1) Negligence claims against children
(2) Negligence claims against professionals (malpractice)
(3) Unknown trespasser
(4) Known trespasser
(5) Licensees
(6) Invitees
44
Negligence claims against children
Children under 5- zero duty of care
Children over 5- supposed to behave as a child of similar age, experience, and intelligence acting under similar circumstances. A subjective standard that varies from child to child.
This is a pro-defendant standard of care.
45
Negligence claims against children
Duty Exception
If child is engaged in an adult activity, use ordinary reasonable person standard.
Operating a motorized vehicle, agricultural vehicles, watercraft, jet ski, snowmobiles, ATV
46
Negligence claims against professionals (malpractice)
Includes any of the commonly known professions
Standard of care: an average member of the same profession providing similar professional services in good standing.
Distinction between AVERAGE and REASONABLE. AVOID USING WORD "REASONABLE"
Average= real world standard of care. How others actually do it. Empirical standard, compare to peer group. Professional ought to e a conformist.
Plaintiff almost always needs an expert witness to come and tell us what is ordinarily done. Expert need not be from same community as defendant.
47
Negligence claims against professionals (malpractice)
Doctor's Duties
Doctors owe a duty to disclose risks of treatment to patients before embarking on that treatment ("informed consent doctrine")
No injury, no claim
48
Unknown Trespasser
Comes on land without possession and possessor does not know that he is there.
Owed ZERO duty of care-- ALWAYS loses negligence claim in a premises liability context.
WHY: no sympathy for people who come on property without permission; unforeseeable
49
Known Trespasser
Also includes ANTICIPATED trespassers-- those who you should expect.
Signal: a pattern of trespassing in the past.
Possessor must protect only against hazard on the land that meet a 4 part test
50
Known Trespasser: 4 Part Test
(1) ARTIFICIAL: condition in question must be artificial (constructed by human beings). No duty w/r/t naturally occurring conditions
(2) HIGHLY DANGEROUS: condition must be highly dangerous (capable of inflicting severe bodily injury or death). No duty w/r/t moderately dangerous conditions
(3) CONCEALED: condition must be concealed from the trespasser. No duty w/r/t an open and obvious condition
(4) KNOWN: possessor must have prior knowledge that the condition exists.
Essentially: is it a man-made death trap?
51
Licensees
Enter land with known or implied permission, but confer no economic benefit on possessor
Ex: a social guest, a solicitor at the door
Duty defined by 2 part test
52
Licensees: 2 Part Test
(1) Concealed hazards that
(2) are known in advance by the possessor
Eliminates artificiality requirement; eliminates serious/highly dangerous requirement.
Essentially: is it a known trap on your land?
53
Invitees
Enter land with permission and to confer economic benefit on the possessor.
Modern view: also an invitee if you enter property that is open to everyone.
Duty defined by 2 part test
54
Invitees: 2 Part Test
(1) Concealed from the invitee
(2) Condition is known by the possessor or could be discovered by reasonable inspection
Inspection conducted by a reasonably prudent person at reasonable intervals
Essentially: is it a reasonably knowable trap?
55
Premises Liability Cases: Methodology
(1) identify Q as premises liability
(2) What kind of entrant?
(3) Apply appropriate test to hazard
56
Premises Liability: Firefighters and police officers
No recovery for any injury that is an inherent risk of the job
57
Premises Liability: Trespassing Kids
A property owner must exercise reasonably prudent care to prevent injury to trespassing kids w/r/t artificial hazards on the land.
Must assess the likelihood of attracting children
"Attractive Nuisance" doctrine
58
If we have a duty owed in premises liability cases (excepting kids) there are 2 ways to satisfy your duty
(1) repair or make safe
| 2) give a warning (provide information
- oral or a sign
- convert hidden danger into an open and obvious one
59
Statutory Standards of Care
Plaintiffs will sometimes point to criminal statutes and ask the judge to-- in a one time only exception-- apply that standard in an "IF--MUST" instruction
60
Statutory Standards of Care: When Can You Invoke?
(1) is the statute designed to protect a class of people of whom this plaintiff is a member?
(2) the injury that occurred is the kind of injury that this statute was meant to prevent
[class of person/class of injury (risk) test]
Where plaintiff cannot satisfy 2- part test, plaintiff proceeds under regular negligence (reasonably prudent person) analysis.
61
Negligence Per Se
Often used w/r/t traffic code.
Designed to protect pedestrians and other motorists.
Designed to protect against motor vehicle accidents
62
Statutory Standards of Care: Exceptions
(1) if statutory compliance would be more dangerous than violence-- DON'T BORROW STATUTE
(2) if statutory compliance is impossible, don't use statutory standard
63
Special Standards: Duties to Act Affirmatively
No duty to act affirmatively
No duty to undertake a course of action
No duty to rescue
64
Special Standards: Duties to Act Affirmatively
EXCEPTIONS
(1) a pre-existing (legal) relationship between 2 parties
- employer and employee
- common carrier-passenger
- innkeeper-guest
(2) defendant caused peril that put plaintiff in danger
Triggers a duty to act reasonably under the circumstances.
Never obligated to put own life in danger/jeopardy
Rescue may not be feasible under the circumstances; duty is to ACT, not rescue
65
Gratuitous Helpers
If you opt into rescue, and you perform the rescue negligently, you are liable.
This is a deterrent to voluntary rescue.
66
Good Samaritan laws
Assume no Good Samaritan laws unless stated
67
Special Standards: Negligent Infliction of Emotional Distress
Negligence established under one of the other standards + no physical trauma + factors
3 subcategories
68
Special Standards: Negligent Infliction of Emotional Distress
3 Subcategories
(1) Near Miss/Close Call Cases
(2) Bystander Case
(3) Business Relationship Cases
69
Special Standards: Negligent Infliction of Emotional Distress
Near Miss/Close Call Cases
Negligent defendant almost hurt plaintiff
Plaintiff must show he was in the zone of physical danger
As a result of the emotional distress, plaintiff suffered subsequent physical manifestations-- something that could be objectively measured that gives us confidence that you aren't faking.
70
Special Standards: Negligent Infliction of Emotional Distress
Bystander Case
Negligent defendant causes serious injury or death or someone who is NOT a party to the current lawsuit
Plaintiff is emotionally sad due to injury to X (grief/sadness/melancholy/mourning)
Plaintiff and victim must be closely related (family).
Plaintiff witnessed injury to X in real time (close in time/space/relationship)
71
Special Standards: Negligent Infliction of Emotional Distress
Business Relationship Cases
Plaintiff and defendant are in a preexisting business relationship where careless performance is highly likely to cause emotional distress.
72
Breach of Duty
Plaintiff must demonstrate exactly what defendant did wrong and must give a reason why it's wrong.
Particularizing conduct and explaining
FACT + CONDUCT
Act or omission AND this was unreasonable BECAUSE
Factual basis of breach will be right there in the problem.
Cost/benefit analysis is usually not the right type of analysis unless there are numbers involved.
73
Breach of Duty: Res Ipsa Loquitur
Plaintiff lacks information about how breach occurred. Have to show:
(1) Accident is of a type normally associated with negligence
(2) Accident of this type would normally be due to negligence of someone in the defendant's position.
Have to establish the likelihood that you are suing the right person.
Have to show defendant's control over injury causing item
74
Factual Causation
Always do factual causation before proximate causation
Plaintiff establishes a link/connection between breach and injury suffered.
Standard mechanism: but-for test.
Breach was essential in causing the injury.
A is free to counter-argue. Argument will usually begin with EVEN IF. Jury will have to resolve argument
75
Factual Causation: Merged-Cause
Often 2 or more plaintiffs.
Substantial factor test. If a breach, as the only breach, would be capable of causing all the damage-- treat that as a factual cause.
If both breaches were substantial factors, jointly liable
76
Factual Causation: Unascertainable Cause
Burden of proof SHIFTS to defendant to explain why they aren't liable
77
Proximate Cause
"Fairness"
Plaintiff must convince us that liability would be fair.
Fairness is judged by foreseeability.
Fair to make people pay for the foreseeable consequences of their careless acts.
78
Proximate Cause: 4 Scenarios Where Injury Foreseeable
(1) Intervening Negligent Medical Care
(2) Intervening Negligent Rescue
(3) Intervening Protection or Reaction Forces
(4) Subsequent Disease or Accident
79
Proximate Cause: Intervening Negligent Medical Care
When you hurt someone and drive them to the medical system, doctors occasionally make things worse rather than better.
Doctor is also liable for medical malpractice
80
Proximate Cause: Intervening Negligent Rescue
Defendant is liable for injuries resulting from negligent rescue
81
Proximate Cause: Intervening Protection or Reaction Forces
Liable
82
Proximate Cause: Subsequent Disease or Accident
Defendant liable
83
Damages: Eggshell Skull Doctrine
Once the other elements have been satisfied, plaintiff will recover for all harm suffered, even if it is surprisingly great in scope.
You take your plaintiff as you find her.
84
Negligence: Defenses
Comparative Negligence
Defendant must show that plaintiff failed to exercise proper care for his own safety. Proper care normally means "reasonable prudence." Can also mean a self-protective statute (e.g. a jaywalking statute)
Jury instructed to weight the carelessness of each litigant, compare, assign each a number, and then reduce plaintiff's recovery by plaintiff's number. This is entirely subjective.
85
Negligence: Defenses
Pure Comparative
Strictly by the numbers.
90% at fault plaintiff still recovers 10% of recovery where defendant is assigned 10%
86
Negligence: Defenses
Modified/Partial Comparative
Plaintiff's fault of 50% or less reduces recovery
Plaintiff's fault of 50% or more eliminates recovery
87
Strict Liability: Animals
Distinguish 2 broad groups of animals
Domesticated Animals v. Wild Animals
88
Strict Liability: Animals
Domesticated Animals
Domesticated: house pets AND LIVESTOCK
NOT strictly liable, would have to establish plaintiff's negligence
EXCEPTION: If your animal has vicious propensities and these are known to you. Vicious propensities have to be specific to this individual animal.
Ex: a dog that has previously bitten. First bite puts you on notice.
Rule does not apply to trespassers on your land
89
Strict Liability: Animals
Wild Animals
Strict liability. Safety precautions are irrelevant
90
Strict Liability: Abnormally Dangerous Activities
(1) Activity creates a foreseeable risk of serious harm even when reasonable care is exercised
(2) Activity is uncommon in the community where it is being conducted
- Anything involving explosives
- Anything involving highly toxic chemical or biological materials
- Anything involving radiation of nuclear energy
Safety precautions are irrelevant
91
Strict Liability: Products
Products means BOTH consumer products and industrial products
If someone gets hurt by a product, they will almost certainly have multiple possible causes of action (negligence, breach of warranty of merchantability, fraud, strict liability)
***Look at the call of the question-- if plaintiff sues for negligence, NOT STRICT LIABILITY!
92
Strict Liability: Products
4 Elements
(1) Defendant is a merchant
(2) Product must be defective
(3) Plaintiff must show product has not been altered since it left the defendant's hands
(4) At the time of the injury, plaintiff was making a foreseeable use of the product
93
Strict Liability: Products
Defendant is a merchant
Someone who routinely deals in goods of this type
A casual seller selling used goods is NOT a merchant
Service providers who make products available incidental to a service are NOT a merchant
Commercial lessors ARE merchants
Parties up the distribution chain with whom you did not deal directly ARE merchants-- no requirement of privity of contract
94
Strict Liability: Products
Product must be defective (3 Types)
3 different kinds of defect, any one is sufficient
(1) Manufacturing defect
(2) Design defect
(3) Information defect
95
Manufacturing Defect
product differs from all of the others than came off the assembly line such that it is more dangerous than consumers would expect.
Safety precautions do not matter
96
Design Defect
products costs outweigh the benefits of the design such that a reasonable person would not have put it on the market.
Cost-it's tendency to hurt you
How does plaintiff establish costs outweigh the benefits?
By offering proof of a reasonable alternative design, that normally meets three tests:
(i) safer
(ii) economically feasible
(iii) practical-- doesn't make product difficult to use
97
Information Defect
product has some risk that can't be designed away and that isn't obvious. Need adequate warning.
Adequacy of warning considerations:
(1) placement
(2) comprehensibility/language
(3) pictures?
(4) risk mitigation information
98
Strict Liability: Products
Plaintiff must show product has not been altered since it left the defendant's hands
Presumption: if product moved in ordinary channels of distribution, presumption, it has not been altered.
*does not apply to items that are purchased used
99
Strict Liability: Products
At the time of the injury, plaintiff was making a foreseeable use of the product
NOTE: a foreseeable use IS NOT necessarily an appropriate use
100
Defenses to the Strict Liability Torts
- Comparative responsibility
- If defendant can prove plaintiff was careless/foolish/negligent, jury can assign percentage of responsibility to plaintiff and reduce plaintiff's award
101
Nuisance
the unreasonable interference with plaintiff's ability to use and enjoy property
Unreasonable: the amount of interference
Making a neighbor miserable
Inconsistent land uses
Spite
Inconsideration
Key question: balancing of interests
We are all obligated to put up with minor inconveniences-- a nuisance must make life intolerable
102
Vicarious Liability
Holding secondary tortfeasor liable based on relationship to primary tortfeasor
(1) Employer-Employee
(2) Hiring Party-Independent Contractor
(3) Automobile Owner and Automobile Driver
(4) Parent and Child
103
Vicarious Liability
Employer-Employee
VL if tort within the scope of employment
Intentional torts are usually outside scope, unless
a) job involves a use of force: misuse of force is within scope
b) if job leads to friction/tension
c) any intentional tort done to serve the boss's purpose: within the scope
104
Vicarious Liability
Hiring Party-Independent Contractor
No VL
If you hire an independent contractor to work on property, VL if they hurt a customer, non-delegable duty of care to customers
105
Vicarious Liability
Automobile Owner and Automobile Driver
No VL
Rule is the other way if I ask you to take my car to do an errand for me-- turns us into principal-agent
106
Vicarious Liability
Parent and Child
No VL
107
Multiple Defendant Issues: Right of Contribution
Yes.
Determined by percentage assigned by jury
Plaintiff collects all from defendant 1, defendant 1 can recover from defendants 2 and 3
108
Multiple Defendant Issues: Indemnification
You have been held VL-- can get full indemnification from active tortfeasor
Non-manufacturer can get full manufacturer in strict liability claim-- shifts loss up the chain
109
Loss of Consortium
Where a married person is injured, injured spouse gets an independent derivative claim.
110
Loss of Consortium: 3 Types of Damages
(1) loss of household services
(2) loss of society (companionship)
(3) loss of sex
111
Defamation: 3 Elements
Common law course of action
(1) Defendant made a defamatory statement that specifically identifies plaintiff
(2) Statement must be published
(3) Damages
112
Defamation: Defendant made a defamatory statement that specifically identifies plaintiff
Defamatory statement: a statement which tends to adversely affect reputation; lower subject in the estimation of community; deter association.
Reputation is an economically valuable asset that can be monetized. Plaintiff must be alive when statement is made. Once you're dead, you no longer have economic interest in your name.
Usually involves a factual representation that reflects adversely on some trait of character
Can be assessed for truth/falsehood
Statement of opinion is usually not defamatory (not susceptible to empirical test), UNLESS as an opinion, fact is implied
Mere name calling is NOT defamatory
Statement must specifically identify plaintiff (but does not have to use plaintiffs name)
113
Defamation: Statement must be published
PUBLIC
Damage to reputation depends on what others think of you; statement must be shared with others (at least one other person). More people, more reputational harm to be reflected in damage award
If statement made only to plaintiff, NOT published, no cause of action
Negligent publication is sufficient to satisfy this rule.
114
Defamation: Statement must be published
Republishers
People who repeat a defamatory statement are open for liability as "republishers"
115
Defamation: Damages
Not always a required proof element. Sometimes presumed
116
Defamation: Damages
Libel
Defamation embodied in permanent form (recorded)
Damages presumed. More you prove, more you get!
117
Defamation: Damages
Slander
Defamation that is spoken/oral.
118
Defamation: Damages
Slander Per Se
Same presumed damage treatment as libel (damages presumed, more you prove, more you get!)
119
4 Types of Slander Per Se
(1) statement relating to business or profession
(2) statement that plaintiff has committed a serious crime (subjective distinction)
(3) statement that imputes unchastity to a woman (statement that an unmarried woman is sexually active)-- only applies to women
(4) statement that plaintiff suffers from a loathsome disease (leprosy, venereal disease)
120
Defamation: Damages
Slander Not Per Se
Need to prove damages.
Must offer evidence of damages (economic harm)
- Lost a job
- revenue is down
- hurt feelings do not count!
- fact that there have been social harms, DO NOT COUNT
121
Defamation and Slander: Affirmative Defenses
(1) Consent: express or implied
(2) Truth: defendant can show statement is factually accurate (burden on defendant)
(3) Privilege: absolute or qualified
122
Absolute Privilege
Based on identity of defendant
- Communication between spouses
- Officers of the 3 branches of government in the course of their official work
123
Qualified Privilege
Arises when there is a public interest in encouraging candor
Case by case basis analysis.
References and recommendations
Person invoking privilege must have reasonable and good faith basis for making the statement-- no privilege for deliberately telling lies-- has to be an honest mistake.
Must confine yourself to matters relevant to the matter at hand.
124
Matter of Public Concern
Something newsworthy with widespread public interest
Add 2 Additional Elements:
(1) plaintiff must prove falsity of statement: proving a negative is difficult
(2) plaintiff must show some degree of fault
fault=statement was made in a bad faith (degrees/gradations depending on who you are)
125
Public Figure
They knew it was false or reckless disregard of falsity (MALICE)
126
Private Figure
Statement made negligently; failure to take reasonable effort to confirm truth or falsity.
127
Privacy Torts (4)
(1) Appropriation
(2) Intrusion
(3) False Light
(4) Disclosure
128
Appropriation
Defendant uses plaintiff's name or image for a commercial purpose
Newsworthiness exception: not a tort to put an image of an athlete on front page of the sports section
Applies to everyone in the world
129
Intrusion
An invasion of the plaintiff's seclusion in a way that would be highly offensive to the reasonable person
Ex: eavesdropping, wiretapping, peeping tom
Must be in a place with a reasonable expectation of privacy
Same conduct can be defamatory, AND false light or intrusion
130
False Light
Widespread dissemination of a material falsehood about plaintiff that would be highly offensive to the average person
"Running all over town telling a big lie about the plaintiff"
Same conduct can be defamatory, AND false light or intrusion
Recovery is for emotional/dignitary damages
-Many false light claims arise out of accidental rather than deliberate behavior-- still a valid cause of action
131
Disclosure
Widespread disclosure of confidential information, about plaintiff, that would be offensive to the reasonable person
Newsworthiness exception
Fact in question must be truly confidential
132
Defenses to Privacy Torts
(1) Consent is a defense to all four claims
| (2) Defamation privileges are available to defeat false light and disclosure claims
