Torts II

Question 1

Joint Tortfeasors - Definition

Answer 1

Two or more individuals who have either:
1. acted in concert for the purpose of causing the plaintiff’s injury; or

2. acted entirely independently but whose acts have caused a single indivisible injury to the plaintiff

Question 2

Joint Tortfeasors - Judgment and Satisfaction

Answer 2

An unsatisfied judgment against one of several joint tortfeasors does not bar the plaintiff’s action against the others. However, the satisfaction of a judgment against one tortfeasor extinguishes the cause of action and bars any later suit for a greater or additional amount against any of the others.

Question 3

Joint Tortfeasors - Releases

Answer 3

1. Traditional Rule - Some courts originally held that a claim or a judgment was extinguished if the plaintiff released one of several joint tortfeasors—i.e., “release of one operates to release all”—and this held true regardless of the sufficiency of compensation paid for the release.
2. Modern Rule - The modern majority approach is to construe a release to affect only the named party. The remaining tortfeasors still remain liable.

Question 4

Joint Tortfeasors - Contribution

Answer 4

A defendant required to pay the plaintiff more than his share of the damage judgment can seek in most states appropriate contribution from any co-tortfeasors.

Question 5

Contributory Negligence - Defined (R. §463)

Answer 5

Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.

Question 6

Contributory Negligence - Modern Rule

Answer 6

Most states have abolished this doctrine and have adopted instead a comparative-negligence analysis.

Question 7

Comparative Negligence - Defined

Answer 7

The conduct on the part of the plaintiff which falls below the standard of conduct which he should conform to for his own protection and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm” is only a partial bar to the plaintiff’s recovery.

Question 8

Pure Comparative Negligence

Answer 8

Plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence (e.g. plaintiff who is 90% responsible for his injury may recover 10% from the defendant).

Question 9

Modified Comparative Negligence - Greater Than 50 Percent

Answer 9

A plaintiff is barred from recovery only when he is more negligent (greater than 50 percent at fault) than the defendant(s).

Question 10

Modified Comparative Negligence - 50 Percent or Greater Approach

Answer 10

A plaintiff is barred from recovery when he is equal to or more negligent (greater than or equal to 50 percent at fault) than the defendant(s).

Question 11

Assumption of Risk - Defined

Answer 11

A plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover.

Question 12

Assumption of Risk - Elements

Answer 12

The plaintiff must:

1. know a particular risk and
2. voluntarily
3. assume it.

Question 13

Indemnity - Generally

Answer 13

A defendant who is only secondarily liable for the plaintiff’s injury, but who is sued and forced to pay a judgment, is entitled to indemnification against the party who was primarily responsible for causing the injury.

Question 14

Indemnity - Distinguished from Contribution

Answer 14

Contribution involves wrongdoers who are jointly and severally liable; it requires that each pay his proportionate share. Indemnity involves one who is primarily responsible for an injury; it shifts the entire loss to his shoulders from another who has been compelled to pay it because he was secondarily liable therefor.

Question 15

Strict Liability - Defined (R. §519)

Answer 15

1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Question 16

Strict Liability - Owners/Possessors of Domestic Animals/Livestock

Answer 16

Livestock - (R. §504)
- Strict liability is imposed for the possessor of trespassing livestock

Domestic Animals
- Keepers of dogs, cats, horses, or other domestic animals are liable for injury caused by the animal only where the possessor knew or should have known of the animal’s aggressive disposition.

• A possessor with actual or constructive knowledge of the animal’s vicious tendencies will be strictly liable for harm, “and no measure of care in its keeping will excuse him.”

Question 17

Strict Liability - Wild Animals (R. §507)

Answer 17

A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm.

Question 18

Strict Liability - Defenses

Answer 18

1. The common law rule is that a plaintiff’s contributory negligence should not bar a claim when strict liability applies.
2. The plaintiff’s assumption of the risk, however, serves as a defense.
3. Some jurisdictions apply comparative negligence to claims arising from injuries by a wild animal, thereby reducing damages awarded to a plaintiff upon showing of incautious conduct.

Question 19

Abnormally Dangerous (Ultrahazardous) Activities (R. 519)

Answer 19

One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

Question 20

Determining Whether an Activity is Abnormally Dangerous (R. 520)

Answer 20

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

1. existence of a high degree of risk of some harm to the person, land or chattels of others;
2. likelihood that the harm that results from it will be great;
3. inability to eliminate the risk by the exercise of reasonable care;
4. extent to which the activity is not a matter of common usage;
5. inappropriateness of the activity to the place where it is carried on; and
6. extent to which its value to the community is outweighed by its dangerous attributes.

Question 21

Products Liability - Defined

Answer 21

• A manufacturer’s or seller’s tort liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product.
• Products liability can be based on a theory of negligence, strict liability, or breach of warranty.

Question 22

Products Liability - Negligence

Answer 22

1. Courts applying negligence to products liability claims use the formulation of Judge Learned Hand (comparable risk-benefit model).
2. The Hand formula states that an actor’s conduct creates an unreasonable risk of harm where the burden of taking measures to avoid the harm would be less than the multiple of two variables: the likelihood that the harm will occur and the magnitude of the harm should it occur.
3. In the formula B > PL, the actor will be considered in breach of its duty when B is less than (P)( L), that is, when B (Burden of precautions) is less than P (likelihood of harm, in terms of Probability) times L (magnitude of Liability, should the harm occur at all).

Question 23

Products Liability - Strict Liability in Tort (SLiT)

Answer 23

1. Strict liability in tort may lie for anyone “who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property.”
2. The plaintiff must establish that the product was defective and that the defect was a substantial factor in bringing about harm.
   a. The fact that injury results from the use of the product is not itself sufficient to impose liability upon the seller.
3. A plaintiff’s proof of defect must show that there was at the time of the original manufacture of the product some technologically feasible, safer alternative for it.
4. The plaintiff must prove that the defect existed at the time the product left the defendant’s control.

Question 24

Products Liability - Consumer Expectations Test (SLiT)

Answer 24

1. The rule applies “only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”
2. The seller may defend the claim that a product was defective and unreasonably dangerous due to the absence of adequate warnings or instructions for safe use, with proof that the user was a member of a presumptively sophisticated class of consumers who could be fairly expected to be aware of the risks of the particular product and the means of using the product safely.

Question 25

Products Liability - Risk/Utility Test (SLiT)

Answer 25

1. Under the risk/utility test, the product is defective as designed or marketed only where the magnitude of the hazards outweigh the individual utility or broader societal benefits of the product.
2. The risk/utility test posits that only reasonably safe products should be marketed, and defines reasonably safe products as those whose utility outweighs the inherent risk, “provided that risk has been reduced to the greatest extent possible consistent with the product’s continued utility.”

Question 26

Products Liability - Third Restatement Approach

Answer 26

The Third Restatement envisions three types of product defect: (1) manufacturing; (2) design; and (3) warning or instructions.

Question 27

Manufacturing Defect

Answer 27

The Restatement states that a product “contains a manufacturing defect when the product departs from its intended design.” This defect is the basis for liability “even though all possible care was exercised in the preparation and marketing of the product.”

Question 28

Design Defect

Answer 28

The Restatement defines a defectively designed product as one whose risks could be avoided or eliminated by an alternative design.

Question 29

Warning/Instructions Defect - Generally

Answer 29

1. A seller may be liable if the product has a potential for injury that is not readily apparent to the user and carries no warnings of the risk or, where appropriate, instructions as to how to use the product safely.
2. A product is “defective” due to its inadequate instructions or warnings “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings. …”
3. The majority rule is that there exists no duty to warn of obviously hazardous conditions.

Question 30

Warning/Instructions Defect - Learned Intermediary Rule

Answer 30

1. As a general proposition, the manufacturer of a prescription drug has a duty to warn the medical profession, rather than the individual patient, of any material risks associated with the use of its products. The physician assumes the role of learned intermediary between the drug manufacturer and the patient.
2. In most circumstances involving prescription drugs, the manufacturer satisfies its duty to warn by conveying the necessary and appropriate information to the treating physician.

Question 31

Warning/Instructions Defect - Persons to be Warned

Answer 31

1. Non-buyers - Where the seller can reasonably foresee that the warning conveyed to the immediate buyer will not be adequate to reduce the risk of harm to the likely users of the product, the duty to warn has been interpreted to extend beyond the purchaser to persons who foreseeably will be endangered by use of or exposure to the product.
2. Slight but Grave Risk - Even if the risk is very slight, when the consequences of an injury are very grave, the manufacturer may have a duty to warn.
3. As a general rule, there is no duty to give a warning to members of a trade or profession against dangers generally known to that group.

Question 32

Warning/Instructions Defect - Adequacy of the Warning

Answer 32

Evaluation of the adequacy of a warning requires a balancing of considerations that include:

1. the dangerousness of the product;
2. the form in which the product is used;
3. the intensity and form of the warnings given;
4. the burdens to be imposed by requiring warnings; and
5. the likelihood that the particular warning all be adequately communicated to those who will foreseeably use the product.

A warning may be inadequate if:

1. its physical characteristics, including its size and placement, are so small or obscure that the reasonable consumer would not read it; or
2. it fails to inform the reasonable consumer of the pertinent hazard and the means for its avoidance.

Question 33

Products Liability - Third Restatement Defenses

Answer 33

1. Among Multiple Defendants - Non-manufacturing sellers such as retailers and wholesalers “are subject to liability for selling products that are defective. Liability attaches even when such non-manufacturing sellers or distributors do not themselves render the products defective and regardless of whether they are in a position to prevent defects from occurring.
2. Between Plaintiff and Defendant - Most courts accept both contributory negligence and assumption of risk as products liability defenses. The majority use these defenses to reduce but not wipe out the plaintiff’s recovery.
   As for plaintiff’s misuse as a defense, it arises where the product was defective and the plaintiff used it in a negligent manner.
3. Disclaimers - “Disclaimers and limitations of remedies … do not bar or reduce otherwise valid products liability claims against sellers … of new products … for harm to persons.”

Question 34

Products Liability - Res Ipsa Loquitur

Answer 34

In a modern products liability action, the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence upon the showing that the injury-causing product was one over which the defendant had control, and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence by the defendant.

Question 35

Products Liability - Misrepresentation

Answer 35

1. Misrepresentation permits a plaintiff to collect damages from the seller of a non-defective product.
2. Restatement (Third) §9 - One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.

Question 36

Warranty - Generally

Answer 36

The three types of warranty that pertain to products liability are:

1. express warranty,
2. the implied warranty of merchantability, and
3. the implied warranty of fitness for a particular purpose.

Question 37

Express Warranty

Answer 37

1. A representation from a seller to a buyer that describes the quality, performance, construction, or durability of a product.
2. In order to be an express warranty, the affirmation from the seller must be one of fact, and must be more than simply the seller’s opinion of the product.
3. Representations that convey only the seller’s praise of the product and nothing more are often described as “puffing,” in contrast to an enforceable express warranty.
   a. Puffing occurs when the seller “merely states an opinion or judgment upon a matter of which the seller has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.”

Question 38

Implied Warranty of Merchantability

Answer 38

1. Per the UCC, the seller of a product warrants that goods sold pass within the ordinary description of like goods; they are safe, and may safely be used for, their intended purpose.
2. As set out in UCC § 2-314( 2), in order to be merchantable these goods must be at least goods that:
   (a) pass without objection in the trade under the contract description; and
   (b) in the case of fungible goods, are of fair average quality within the description; and
   (c) are fit for the ordinary purposes for which such goods are used; and
   (d) run, with the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
   (e) are adequately contained, packaged, and labeled as the agreement may require; and
   (f) conform to the promise or affirmations of fact made on the container or label, if any.

Question 39

Implied Warranty of Fitness for a Particular Purpose

Answer 39

UCC § 2-315 states: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

1. The buyer must rely on the seller’s skill or judgment to select or furnish suitable goods.
2. At the time of the sale or contracting to sell, the seller must have reason to know of the buyer’s purpose and that the buyer is relying on the seller’s skill or judgment.

Question 40

Warranty Disclaimers

Answer 40

1. As a general rule, once an express warranty has been made it cannot be disclaimed.
2. Unlike express warranties, implied warranties of merchantability or fitness for a particular purpose can generally be disclaimed.
3. Conspicuousness - As a general rule, post-sale disclaimers are held invalid by the courts. For example, the disclaimer may be found on an invoice that reaches that buyer after the deal is closed or it may be found in sales literature or an operator’s manual not received by the buyer until after the sale.

Question 41

Public Nuisance

Answer 41

1. Restatement §821B - An unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property.
2. A public nuisance suit for damages may be brought by a public official or a public agency, or it may be brought by a private individual or business that has “suffered harm of a kind different from that suffered by other members of the public[.]”

Question 42

Private Nuisance - Generally

Answer 42

1. Restatement §821D - A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.
2. For example, noise, lights, odor, or vibration. The plaintiff alleging nuisance must prove an injury, and courts usually require “substantial” damages.

Question 43

Private Nuisance - Intent

Answer 43

1. Restatement §822 - Liability exists in nuisance for an “invasion of another’s interest in the private use and enjoyment of land” where the invasion is:
   intentional and unreasonable, or
   unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
2. Therefore a defendant may be found liable even though he acted with due care.

Question 44

Nuisance Per Se

Answer 44

A nuisance per se describes any act that constitutes a nuisance “at all times and under any circumstances,” such as, for example, the permanent or chronic contamination of plaintiff’s property.

Question 45

Nuisance Per Accidens

Answer 45

Nuisance per accidens requires the fact finder’s evaluation of whether, “under all the surrounding circumstances … [defendant’s action] substantially interferes with [plaintiff’s] comfortable enjoyment[.]”

Question 46

Nuisance - Utility of the Invasion

Answer 46

1. Restatement §826 - An intentional invasion of another’s use of land is unreasonable if “the gravity of the harm outweighs the utility of the actor’s conduct[.]”
2. Where the utility of defendant’s conduct outweighs the burden on the plaintiff, and money damages can compensate for plaintiff’s ham without causing financial ruin to the defendant, money damages, and not an injunction, are an appropriate response.

Question 47

Fraudulent Misrepresentation - Defined

Answer 47

The tort of fraudulent misrepresentation consists of five elements:

1. a material misrepresentation;
2. the defendant acted with the requisite scienter (he knew the statement was false or made it with reckless disregard as to its truth or falsity);
3. the defendant intended to induce reliance;
4. the misrepresentation caused plaintiff’s justifiable reliance; and
5. pecuniary damages resulted to the plaintiff.

Question 48

Fraudulent Misrepresentation - Material Misrepresentation

Answer 48

1. The misrepresentation by the defendant must be of a past or present material fact.
2. An assertion is material if either a reasonable person would attach importance to it in determining his action in the relevant transaction or the maker of the statement either knows or should know the person to whom the misrepresentation is addressed is likely to regard it as important.

Question 49

Fraudulent Misrepresentation - Scienter

Answer 49

Restatement §526 - A misrepresentation is fraudulent if the maker:

1. knows or believes that the matter is not as he represents it to be,
2. does not have the confidence in the accuracy of his representation that he states or implies, or
3. knows that he does not have the basis for his representation that he states or implies.

Question 50

Fraudulent Misrepresentation - Intent to Induce Reliance

Answer 50

1. The defendant must have intended the misrepresentation to have been relied upon as truthful by the victim.
2. A joke which is not intended to be taken seriously is not actionable under this tort.

Question 51

Fraudulent Misrepresentation - Causation

Answer 51

1. The misrepresentation must have caused reliance. If the victim is not deceived, the tort is not actionable.
2. The maker of the misrepresentation is, however, only liable for damages that would be foreseeably caused by the deceit.
3. The victim’s reliance must be “justifiable.” Reliance is not justified when the misrepresentation is immaterial to the transaction, nor is it usually justified when the misrepresentation is mere opinion.

Question 52

Fraudulent Misrepresentation - Damages

Answer 52

1. A substantial majority of courts award pecuniary damages based on the “benefit of the bargain” if the misrepresentation had been true.
2. Punitive damages can also be recovered where malice is proven.

Question 53

Injurious Falsehood - Defined

Answer 53

Restatement §623A - One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if:

1. he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
2. he knows that the statement is false or acts in reckless disregard of its truth or falsity.

Question 54

Injurious Falsehood - Prima Facie Case

Answer 54

In order to prove a prima facie case of injurious falsehood, the plaintiff must prove that:

1. The defendant intentionally made false statements disparaging the plaintiff’s property or business interests
2. The statements were published to third persons
3. The defendant’s statements were the cause of the harm suffered by the plaintiff
4. The plaintiff suffered “special damages” (actual economic damages)

Question 55

Interference with Existing or Prospective Contractual Relations

Answer 55

Restatement §766 - One who intentionally and improperly interferes with the performance of a contract between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Restatement §766A - One who intentionally and improperly interferes with the performance of a contract between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him.

Restatement §766B - One who intentionally and improperly interferes with another’s prospective contractual relation is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of:
inducing or otherwise causing a third person not to enter into or continue the prospective relation or
preventing the other from acquiring or continuing the prospective relation.

Question 56

Interference with Existing or Prospective Contractual Relations - Elements

Answer 56

1. A valid contract or economic expectancy between the plaintiff and a third party.
2. Knowledge of the valid contract or economic expectancy by the defendant.
3. Intent by the defendant to interfere with the contract or economic expectancy.
4. Interference caused by the defendant.
5. Damages to plaintiff - The plaintiff must suffer damages. In addition to economic damages, compensation for mental distress and punitive damages, where malice is established, may be awarded.

Question 57

Misuse of Legal Procedure - Malicious Prosecution

Answer 57

Malicious prosecution addresses wrongful criminal prosecution of an innocent defendant in bad faith.

Question 58

Misuse of Legal Procedure - Malicious Institution of Civil Proceedings

Answer 58

Malicious institution of civil proceedings addresses wrongful institution of a civil proceeding against a non-liable defendant in bad faith.

Question 59

Misuse of Legal Procedure - Elements

Answer 59

1. Institution or continuation of a criminal or civil proceeding against the accused
2. Termination of the proceeding in favor of the accused
3. Absence of probable cause for prosecution or civil proceedings
   a. The Restatement interprets probable cause to require that the accuser must have a subjective belief in the guilt or liability of the accused in addition to a reasonable basis for that belief.
4. Improper purpose of the accuser
5. Damages suffered by the accused
   a. Damages include the economic consequences of the wrongful litigation as well as emotional distress, reputational injury, and, where malice is established, punitive damages.

Question 60

Misuse of Legal Procedure - Abuse of Process

Answer 60

Abuse of process addresses the misuse of legal processes such as depositions, subpoenas and property attachments.

Unlike malicious prosecution or malicious institution of civil proceedings, there is no need to await the outcome of a criminal prosecution or civil suit.

Question 61

Defamation - Defined

Answer 61

Black’s Law dictionary defines defamation as malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person.

Restatement §559 - A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Mere insults, hyperbole, obvious jokes or pure opinion cannot be the basis for a defamation action.

It is enough for the plaintiff to show that a “substantial and respectable minority” or a “right-thinking minority” would comprehend the defamatory nature of the communication.

Question 62

Defamation - Elements

Answer 62

Restatement §558 - To create liability for defamation there must be:

1. a false and defamatory statement concerning another;
2. an unprivileged publication to a third party;
3. fault amounting at least to negligence on the part of the publisher; and
4. either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Question 63

Defamation - Publication

Answer 63

A plaintiff must establish that the defamatory communication was published. For a communication to be published, it must simply reach one person other than the defamation plaintiff.

The number of recipients may be relevant to the damages the plaintiff suffered, but for this element to be established, only a single third party need receive the communication and understand its defamatory thrust.

Any repetition of a defamation is considered publication, even if the republisher attributes the statement to the initial source.

Question 64

Defamation - General Damages

Answer 64

In most defamation cases, a plaintiff’s reputational injury may be presumed, permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. In the defamation context, such damages are called “general damages.”

General damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched.

Question 65

Defamation - Special Damages

Answer 65

Special damages are specific economic losses flowing from the defamation, such as lost profits. They must be pled with specificity. If the plaintiff proves these special damages, he may then recover general damages. Special damages, however, are often very hard to prove.

Question 66

Slander & Libel - Defined

Answer 66

Slander is an oral utterance while libel is a more permanent expression, such as a writing, photo, statue or sculpture.

Question 67

Slander Per Se

Answer 67

Four traditional slander per se categories permit presumed reputational damages absent special damage:

1. Slanderous communications that directly call into question the plaintiff’s competence to perform adequately in her trade or profession.
2. Statements claiming the plaintiff has a current, loathsome disease, such as syphilis or AIDS.
3. Allegations of serious criminal misbehavior by the plaintiff, typically criminal activity involving moral turpitude.
4. Allegations where the defendant suggested a lack of chastity in a woman.

Question 68

Libel Per Se/Libel Per Quod

Answer 68

Some states have distinguished libel per se (libel on its face) from libel per quod (libel that requires extrinsic evidence such as inducement or innuendo).

In these states, the plaintiff may recover general damages for libel per se.

For libel per quod, however, the plaintiff must show special damages (as in the slander context) unless the libel falls into one of the slander per se categories.

Question 69

Defamation - Substantial Truth

Answer 69

If the communication in issue was true, there was no basis for a defamation action. At common law, however, the defamatory communication was presumed false, and it was incumbent upon the defendant to establish truth as a defense.

While the defendant had to show the accuracy and truth of the statement in issue, he did not have to show the literal truth of every aspect — substantial truth is the test.

Question 70

Defamation - Absolute Privilege

Answer 70

A defendant may escape liability even if he knew that the statement was false or published it in order to hurt the plaintiff’s reputation.

These absolute privileges typically arise in governmental proceedings involving judicial, legislative, and executive communications. In the judicial context, statements made in court or in official court papers are absolutely privileged as long as relevant to the court proceeding.

Communications made privately by one spouse to another are absolutely privileged, as are television or radio stations’ obligatory broadcasts of a candidate’s response to another candidate pursuant to laws mandating equal access in the electoral process.

Question 71

Defamation - Qualified Privilege

Answer 71

The third party must need the information and be able to act on it, and it must be relevant. Additionally, where the defendant and the recipient of the information share a common interest, such as a group affiliation or a common employer, there is a qualified privilege to convey relevant information.

A defendant may lose a qualified privilege in several ways:

1. by failing to have an honest belief that the statement was true;
2. by failing to have an objectively reasonable belief that the statement was true; or
3. by disclosing the information to more people than necessary (that is, excessive publication).

Question 72

Defamation - Public Officials

Answer 72

A public official plaintiff could only prevail in a defamation action where the public official shows that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as “actual malice.”

The Court in essence created a qualified privilege, a privilege that could be lost by clear and convincing evidence of actual malice.

Public officials are those individuals who are positioned to affect policy — those “who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs”

Question 73

Defamation - Public Figures

Answer 73

The Court determined that “public figures,” like public officials, should have to prove actual malice in order to prevail in defamation actions.

Public figures assume the risk of some reputational harm by involving themselves in issues of importance.

Question 74

Defamation - Public Figure Three-Prong Test

Answer 74

A three-prong test can be used for a court’s determination of whether a plaintiff is a limited public figure:

1. Was there a legitimate public controversy that had ramifications beyond the parties in the defamation suit?;
2. Did the plaintiffs thrust themselves into the forefront of the dispute?;
3. Was the defamation related to the plaintiff’s participation in the dispute?

Question 75

Defamation - Private Persons Generally

Answer 75

The law in the private plaintiff context requires that the subject matter of the defamation be analyzed to discern whether it deals with matters of public concern or matters of private concern.

One should look at the “content, form, and context” of the communication.

Question 76

Defamation - Private Persons, Public Concern

Answer 76

In Gertz, the Court acknowledged that private plaintiffs should be able to recover more readily than public plaintiffs for defamation.

The Court determined that states could permit private plaintiffs to recover damages for “actual injury,” defined as proven “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering,” under any standard other than strict liability.

The Court held that the tougher fault standard of actual malice was appropriate when the plaintiff sought either presumed damages or punitive damages.

Question 77

Defamation - Private Persons, Private Concern

Answer 77

The plurality held that the Constitution does not require that a private plaintiff suing in a case involving a matter of private concern prove actual malice to recover presumed and punitive damages, as is required of private plaintiffs suing in cases involving matters of public concern.

Question 78

Defamation - Actual Malice

Answer 78

Public officials, public figures, and private plaintiffs in cases of public concern in which they seek presumed or punitive damages must show clear and convincing evidence of actual malice.

The fault standard of actual malice requires the plaintiff to prove that either the defendant knew of the falsity or was reckless as to truth or falsity.

To prove recklessness as to truth or falsity, the plaintiff must show that the defendant had “in fact entertained serious doubts as to the truth of his publication.”

Question 79

Defamation - Falsity

Answer 79

At common law, the falsity of the defamatory statement was presumed and truth was a defense. The Supreme Court has determined that in cases involving public officials, public figures, or private figures and matters of public concern, the Constitution mandates that the plaintiff prove falsity as part of his prima facie case.

Question 80

Invasion of Privacy - Generally

Answer 80

Invasion of privacy includes four related torts:

1. Unreasonable Intrusion Upon the Seclusion of Another
2. Publicity that Places Another in a False Light
3. Public Disclosure of Embarrassing Private Facts
4. Appropriation of Another’s Name or Likeness

Question 81

Unreasonable Intrusion Upon the Seclusion of Another

Answer 81

Restatement §652B - One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

There is no requirement that the victim be aware of the intrusion

Question 82

Publicity that Places Another in a False Light

Answer 82

Restatement §652E - One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:

1. the false light in which the other was placed would be highly offensive to a reasonable person, and
2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Question 83

Public Disclosure of Embarrassing Private Facts

Answer 83

Restatement §652D - One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

1. would be highly offensive to a reasonable person, and
2. is not of legitimate concern to the public.

The requirement of publicity requires, as with false light, that the defendant communicate the private facts to a significant group of people. This contrasts with the publication element in defamation which only requires communication to one person other than the defamed.

Question 84

Appropriation of Another’s Name or Likeness

Answer 84

Restatement §652C - One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Question 85

Publicity that Places Another in a False Light - Elements

Answer 85

The elements of false light include the defendant’s (1) publicizing (2) false facts (3) that a reasonable person would object to.

The element of publicizing requires that the defendant communicate the false facts to a substantial number of people. Publicizing constitutes a greater requirement than the comparable element in defamation, “publication.”