Torts: Privacy torts, Misrepresentations, and Nuisance Flashcards
Privacy torts: Misappropriation of Plaintiff’s Name or Likeness
can bring an action for this if there is use of someone’s name and likeness to sponsor or endorse a product w/o their permission
Privacy torts: Intrusion into Plaintiff’s Seclusion (her home, office, car)
Problem: B, a free-lance photographer, takes pictures of A while A is nude sunbathing on a public beach. Were any torts committed?
No, a public beach is not A’s “seclusion.”
Problem: B, a free-lance photographer, takes pictures of A while A is showering in her new apartment. B took the pictures using a secret spy camera that he had installed in A’s apartment before she moved in. Were any torts committed (judged by whether it is highly offensive to an average person)?
Yes, a reasonable person would find such intrusion highly offensive. Thus, A could recover damages for emotional distress and mental anguish.
Privacy torts: Publication of Plaintiff in a (Highly Offensive) False Light
Problem: Playgirl magazine’s cover showed a photo of actor Jose Solano, Jr. next to a headline which stated: “Primetime’s Sexy Young Stars Exposed.” Solano sued Playgirl claiming that the publication was in a false light because it suggested he was pictured nude inside the magazine. The cover contained no false statements of fact because the magazine contained a written exposé of Solano. Will Solano prevail?
If the plaintiff is a public official or public figure, the plaintiff must satisfy the actual malice test to prevail on this tort
Privacy torts: Public Disclosure (wide-spread) of Private Facts
is wide-spread publication of very private facts highly offensive to a reasonable person and is not a matter of public concern.
There is an absolute privilege for publishing matters in the public record (e.g., name of rape victim).
Misrepresentations: intentional misrepresentations (depict)
Elements:
a. defendant made a statement of material fact (not opinion)
b. knowing it was false or with reckless disregard for the truth
c. intending for plaintiff to rely on the statement
d. plaintiff justifiably relied on the statement (NOTE: the plaintiff has no duty to investigate the truth of the defendant’s statement, unless it is obviously false), and
e. such reliance caused plaintiff to suffer actual pecuniary loss (NOTE: the plaintiff may not recover for emotional harm)
Most jurisdictions require plaintiffs to prove intentional misrepresentation by clear and convincing evidence
Misrepresentations: negligent misrepresentation
A defendant who is in the business of supplying information for the guidance of others in business transactions (e.g., an accountant or surveyor) may be held liable for negligent misrepresentations.
Strict Privity: The defendant owes a duty only to those persons to whom the representation was made and to those persons the defendant actually knew would rely on it in their business transactions.
Damages: A plaintiff is generally limited to “reliance” damages for negligent misrepresentation. The plaintiff must suffer actual pecuniary loss; the plaintiff may not recover for emotional harm.
Defenses: Contributory negligence (e.g., an unreasonable failure to investigate) is a defense to negligent misrepresentation.
Public nuisance
Standing:
an individual may bring suit for damages and/or to enjoin a public nuisance only if he or she has suffered some unique injury (different than that of the general public); otherwise, such suits must be brought by the attorney general or district attorney
Private nuisance
A private nuisance occurs if the defendant is using her land in such a way that causes substantial and unreasonable interference with the plaintiff’s land (e.g., smoke, odors, sounds, shockwaves, unsightly objects or conditions)
a. if there is substantial interference (i.e., an interference that is offensive, inconvenient, or annoying to an average person in the community), the court will balance the equities of defendant’s use against the interference to plaintiff’s use, and may award damages, a partial or complete injunction, a forced purchase of plaintiff’s property, or nothing at all
Exception: if the defendant has willfully (i.e., spitefully) created the nuisance, the court will not balance the equities, but rather will rule against the defendant
b. defenses:
i. the plaintiff is super-sensitive (e.g., extreme concern with noise); in other words, the interference would not bother an average person in the community
ii. the plaintiff came to the nuisance; this is not a bar to plaintiff’s recovery, but is a relevant factor for the court
