Advanced Torts Outline

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I. Definition of a tort: a. a civil wrong other than a breach of contract for which the law provides a remedy. It is an area of law that imposes duties on persons to act in a manner that will not injure other persons ( most states have adopted the 2 nd /3 rd Restatement of Torts as a model rule) b. purposes of tort law: i. to provide a peaceful means for adjusting the rights of parties who might otherwise “ take the law into their own hands” ii. to deter wrongful conduct iii. to encourage socially responsible behavior iv. to restore injured parties back to their pre- injury positions ( to the extent that this can be done through compensation for injurieds) v. to vindicate individual rights of redress vi. to promote the widespread distribution of losses by encouraging individuals to purchase insurance c. Two possible theories for tort law: i. Originated with imposing liability based upon actual intent and person culpability and later evolved into liability that was non- fault base ii. Tort law originated with imposing liability based on the causing of physical harm by the D irrespective of fault (ex: strict liability) and later evolved into imposing liability based upon fault ( personal culpability) d. 3 basis for imposing tort liability i. intentional conduct ii. negligent conduct iii. strict liability ( conduct is neither intentional nor negligent) 1

description

Strict Liability, Misrepresentation, Defamation, Privacy

Transcript of Advanced Torts Outline

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I. Definition of a tort: a. a civil wrong other than a breach of contract for which the law provides a

remedy. It is an area of law that imposes duties on persons to act in a manner that will not injure other persons ( most states have adopted the 2nd

/3rd Restatement of Torts as a model rule)b. purposes of tort law:

i. to provide a peaceful means for adjusting the rights of parties who might otherwise “ take the law into their own hands”

ii. to deter wrongful conductiii. to encourage socially responsible behavioriv. to restore injured parties back to their pre-injury positions ( to the

extent that this can be done through compensation for injurieds)v. to vindicate individual rights of redress

vi. to promote the widespread distribution of losses by encouraging individuals to purchase insurance

c. Two possible theories for tort law:i. Originated with imposing liability based upon actual intent and

person culpability and later evolved into liability that was non-fault base

ii. Tort law originated with imposing liability based on the causing of physical harm by the D irrespective of fault (ex: strict liability) and later evolved into imposing liability based upon fault ( personal culpability)

d. 3 basis for imposing tort liability i. intentional conduct

ii. negligent conduct iii. strict liability ( conduct is neither intentional nor negligent)

1. a.k.a “ no fault” or “absolute liability”a. animals b. abnormally dangerous activitiesc. products

II. Development ton Strict Liability a. Animal, Abnormally Dangerous Activities and Limitations

i. General:1. Liability: dependant on those who keep, possess and harbor

animals may be held liable or responsible for injuries caused to persons or property

2. Policy: liability is imposed due to the abnormal nature of the animal and/or danger posed by the animal to the particular community

a. Animal poses some kind of an abnormal risk to the particular community where it is kep

ii. Wild animals

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1. Definition: an animal that is not customarily devoted to the service of mankind at the time and in the place where the animal is being kept wtf does this mean r. 506

2. General rule:a. Landowners are not responsible for harm done by

wild animals on their propertyb. Exceptions:

i. Landowner reduced the animal to possession

will be held strictly liability for injuries cause by the animal due to attacks on a person or animals of another

ii. Landowner introduced a non-indigenous animal into the area

iii. Ex:1. Lions, tigers, bears,

elephants, wolves, monkeys, deer, foxes

3. Key factor:a. The type of animal subject to strict liability is one

the poses some type of abnormal risk to the particular community where the animal is kept

i. Test:1. Has the owner exposed a

person or the community o an abnormal risk of harm?

a. Note should it matter if the animal is viewed as “wild” or “domesticated”

iii. Domesticated Animals 1. Definition: an animal that is customarily devoted to the

service of mankind at the time and in the place where the animal is being kept R.506

a. Ex: i. Cattle, horses, sheep, pigs, goats, chickens,

dog indicate 2. Common law rule for trespassing animals and injuries to

land a. Rule: if animal is viewed as likely to trespass the

owner was held strictly liable for trespasses to land i. Ex:

1. Barnyard animals-cattle, horses, sheep, pigs, turkeys, chickens, pigeons

ii. Exceptions:

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1. Animals straying from a highway on which they were lawfully being driven

2. Cats/dogsb. Fencing In/Fencing Out Statutes

i. Fencing In: requires owner of animals to fence them in or otherwise restrain them. Owner strictly liable if animal is not fenced in

ii. Fencing Out: requires the owner to fence their land properly, however the owner is strictly liable for injuries caused by the animal even with the land is fences properly and the animal breaks through the fence and damages the property

1. Otherwise, liability is imposed only if the owner of the animal was negligent look up

3. Common law rule for domestic animals that injure a person a. Rule: owner of a domesticated animal not held

strictly liable for bites and injuries unless the owner was aware of the animals dangerous propensities

i. Definition of “dangerous Propensities:1. The animals propensity to

do any act that might endanger the safety of the persons and property of others in a given situation

b. Dog Bite Statutes (“DBS”):i. Eased the burden placed upon the plaintiff of having

to demonstrate the owners knowledge of the animals dangerous propensities

ii. IL statute:1. If a dog or other animal,

without provocations, injures any person who is peaceable conducting themselves in a place where they can lawfully be, the owner is liable for the full amount of the injury

2. Elements P must show:a. Injury caused by a dog

harbored/ owned by the defendant

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b. Lack of provocation by the Pc. Peaceable conduct of the

person injured d. person injured in place where

they have a legal right to beb. Abnormally dangerous activity (Ultra hazardous is a limited definition that

was used before ADA)i. Modern rule: Restatement Section 519/520

1. 519:a. one who carries on an abnormally dangerous

activity is subject to liability for the harm done to the person, land, or chattles of another resulting from the activity, although he has exercised the utmost care to prevent the harm

b. R. 520: test for abnormally dangerous activity analysis

i. Existence of a high degree of risk of some harm to the person land or chattle s of others

ii. Likelihood harm that results from it will be great

iii. inability to eliminate the risk by the exercise of reasonable care ( most controlling factor)

iv. extent to which the activity is not a matter of common usage

v. inappropriateness of the activity to the place where it is carried on; and

vi. extent to which its value to the community is outweighed by its dangerous attributes

1. note: a. one is not sufficient but all 6

are not necessaryb. an activity’s qualification as

an abnormally dangerous activity under this test is a question of law decided by a judge not a question of fact decided by the jury

c. apply factors to determine whether strict liability should be applied if not is it an issue of reasonable care being used?

d. examples of activities:i. blasting in urban

areas

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ii. transportation and storage of toxic chemicals and inflammable liquids

iii. crop dusting iv. fumigation with toxic

gasesv. testing of rockets

vi. fireworks display 2. Case Law :

a. Ryland v. Fletcher : D is liable only when they damage another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of character of that place and its surroundings

b. Abnormally conducted activity is generally referring to activity on land not water

ii. Limitations on strict liability and abnormally dangerous activities (defenses)

1. Limitations on injuries a. Rule: strict liability is confined to consequences that

lie within the extraordinary risk whose existence makes the activity abnormally dangerous

i. Note:1. There must be a nexus

between the activity and the injuries suffered by the P ( the cut off pt with strict liability claims)

2. D will be liable only for harm caused by the danger that makes the activity “ abnormally dangerous/ ultra hazardous)

2. Acts of God a. Definition: extraordinary force of nature intervening

to bring about harm from that threatened by actors negligence (restatement)

b. Factors:i. Must be extra ordinary

ii. The force of nature is one that is generally unforeseeable (unanticipated)

iii. The force of nature must not be already in operation at the time the d acts

iv. Harm resulting must be of a kind that is different from that which would have made

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the from that which would have made the actors conduct negligent

1. ( harm that could not have been prevented by the exercise of due care)

c. Rule: even when the D’s activity is subject to strict liability ( participating in abnormally dangerous activities) the D’s will not be liable for those injuries caused by an “act of God” or and “act nature” which D could not have anticipated

i. Ex: hurricanes, floods, earthquakes, extraordinary rainfalls, extra severe frosts

3. Contributory Negligence a. Rule: generally contributory negligence will not be

a defense to an action for strict liability. It will be a defense, however, when the negligence of the P rises to the level of “implied/voluntary assumption of the risk”

b. Assumption of the Risk Test:i. P has actual knowledge of the risks

ii. P is able to appreciate the risksiii. P voluntarily proceeds to encounter the risk

1. ex: P climbing under the rope putting himself in harms way of the dangerous animal

c. Defective Products and Products Liability i. Products liability: focus is to hold sellers, retailers, manufacturers,

people who put products out into the market place strict liable ii. Forms of products liability:

1. Negligence2. Warranty3. strict liability:

iii. Negligence 1. Theories of recovery:

a. Duties of care under tort law can arise out of contractual relationships or agreements

i. Products liability actionsii. Contractual agreements: where a party

agrees to do something and a breach of the K results in harm done to the p

iii. Professional mal practice actions b. Contractual duties:

i. Misfeasance: active misconduct that works a positive injury to others

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1. Ex: when D misperforms the K

2. If the D’s actions constitute misfeasance, then the possibility of recovery under tort law is greatly increased. Privity of K would not be a bar from recovery

ii. Nonfeasance: inaction or a failure to take steps to protect P’s from harm.

1. where there is only the promise to do something and the breach of that promise

2. Privity of K is a key factor 3. If the D’s actions constitute

nonfeasance, then historically, the K action would lie and no tort action could be maintained

iv. Warranty1. Definition: a promise or agreement by the seller that an

article sold has certain qualities or that the seller has good title thereto

a. Or a statement of fact respecting the quality or character of goods sold, made by the seller to induce the sale, and relied on by the buyer

2. Forms :a. Expressed: written agreement/ expressed

representations. A promise, ancillary to an underlying sales agreement, which included in the written or oral terms of the sales agreement under which the promisor assures the quality, description, or performance of the goods.

i. Test:1. Must be expressed

language2. P must bring evidence that

they relied on this statement when they purchased the good

b. implied : covenants that run with the land. A promise arising by operation of law, that something which is sold shall be merchantable and fit for the

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purpose for which the seller has reason to know that it is required.

i. note: implied warranty of fitness of purpose may run with the article even though D put the information in the K and P did not read it ( ex: K of adhesion)

ii. ex: when manufacturer puts product in the “stream of trade and promotes its purchase by the public” an implied warranty follows it

1. the implied warranty can run with the sale even if product was given to another an a gift and there is not privity of K between manufacture and the receiver of the gift

3. Public policy :a. Protecting the consumer and requiring that an

implied warranty of fitness accompany the sale of a product

b. unequal bargaining power between the consumer and the manufacturer

i. lay persons does not have the ability to inspect or to determine the fitness of the automobile that he or she will purchase, or to negotiate or alter standardized contracts of the seller

4. Advantages/Disadvantages of breach of warranty theory:a. Advantage: its not dependant on negligence or

knowledge on the defect and the express and implied warranty theories provide additional protection for the consumer

b. Disadvantage: weakens the manufacturers reliability on the privity of K with the consumer for a breach to ensue, warranties have limitations

v. Strict Liability1. Rule:

a. a manufacturer is strictly liable in tort when an article he places on the market knowing that it is to be used without inspection for defects process to have defect that causes injury to human beings

2. Public Policy: a. to insure that the cost of injuries resulting from

defective products are borne by the manufacturers that put such products on the market rather than by

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the injured persons who are powerless to protect themselves ( easing burden on P)(Greenman)

3. Test to prevail under Strict Liability: (Greenman)a. P must prove they were:

i. Injured while using the product in a way that it was intended to be used

ii. The injury was a result of a defect in the design of the product

iii. The P was not aware of the defect b. R. 402A:

i. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if:

1. the seller is engaged in the business or selling such a product; and

2. it is expected to and does not reach the user or consumer without substantial change in the condition in which it s sold

a. note:i. this rule still applies

even if the seller has exercised all possible care in the preparation and sale of his product

ii. the user or consumer has not brought the product from or entered into any contractual relation with the seller

3. product must be defective at the time it leaves the Manufacturer or the seller

4. applies to any person engaged in the business of selling products for use or consumption:

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a. ex: manufacturer, whole sale or retail dealer distributor, and the operator f a restaurant

4. A product can be defective in 3 ways: R.420(A)a. Manufacturing:

i. Definition: when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

1. flawed b/c it was misconstrued or a result from some mishap in the manufacturing process itself. i.e. improper workmanship

ii. Test:1. Product is evaluated against

the manufacturers own product standards. ( products of the same design

b. Design: i. Definition: when the foreseeable risks of

harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe

1. Imperfections/ problems in the deign of the product ( blueprint)

ii. Policy:1. The victims injured by

defective products should be compensated for their injuries without being subject to the contractual intricacies of the law of sales

2. To encourage the design of safer products this reducing incidents of injuries

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iii. Uniform Products Liability Act : adopted a negligence/ fault system in determining design defects

iv. Test to determine design defects:v. Risk utility Balancing test

1. Design is defective when the risk of harm outweighs the utility of the design

2. Factors:a. Usefulness and desirability of

the product its utility to the user and to the public as a whole

b. The safety aspects of the product which would meet the same need and not be as unsafe (alt.design

c. The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility

d. The users ability to avoid danger by the exercise of care in the use of the product and their avoidability because the general public knowledge of the obvious condition of the product or of the existence of suitable warnings instructions

e. Feasibility on the part of the manufacture of spreading the loss by setting ht price of the product or carrying liability insurance

vi. Consumer Expectations about the product1. Does the product meet the

ordinary/ reasonable consumers expectations for the safety of the product?

2. Standard: P must introduce evidence that demonstrates that the product dialed to perform as safely as an ordinary/reasonable

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consumer would expect when using the product in its intended or reasonably foreseeable manner.

vii. Risk-utility and consumer expectations viii. State of the Art Defense:

1. Definition: referring to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed

2. Defense: evidence that the product is in conformance with “ state of the art” technology and information at the time of the manufacture of the product can show that th no better/ or alternative design was available at the time the product was designed

c. Warning (information): when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor or predecessor in the commercial chain of distribution, and the omission of the instruction or warnings renders the product not reasonably safe

i. Hopkins rule: product poses an unreasonable risk of harm/danger to a consumer can often be made safe by including an adequate warning informing of the dangers and how to properly use the product

ii. Rule: P must prove only that the D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution of the product

iii. Factors to determine adequacy of the warning:

1. Does the warning attract the users attention?

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( typeface of font, size, color)

2. Does the warning tell of the hazards or dangers of the product? ( look at the expressed language )

3. Does the warning inform the use as to how the product can be used safely in the order to avoid the hazards and dangers? ( expressed langauge)

iv. State of the art design1. Defense: evidence that the

particular risk was neither known nor knowable by the application of scientific or medical knowledge available at the time of the manufacturer and or the distribution of the product

a. D must have actual and constructive knowledge of the potential risk or danger of product b/f strict liability is imposed P must show this

5. Analysis of product liability:a. What’s the tort at issue? What are the policies

behind strict liability?b. Can P establish the prima facie elements for strict

liability (R. 402A)c. does the defendant have a defense?

6. Test:a. D must be the manufacture or the seller of the

productb. The product must be defective at the time it was

sold by the D ( manufacturing, design, warning) c. The product must reach the consumer without

substantial changes in its conditionsd. The defective condition of the product must be the

cause ( proximate/actual) of the p’s injuries 7. Proof:

a. Direct:i. demonstrative ( tangible the actual defective

product after the incident), probable cause of accident

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ii. witness testimony (eye witness/experts)iii. state of the Art

b. Indirect: circumstantiali. Common knowledge- the happening of the

event, evidence of injury occurring in the course of or following use of product

8. General Defenses to Products liability:a. Attacks on the prima facie elementsb. Product alterationc. Design alterationd. Design defects “state of the art”e. Information defects “ state of the art”f. Plaintiffs contributory negligence(complete bar at

common law)g. Comparative fault

i. Forms 1. Pure

a. Manufactures relieved from strict liability if P has been contributory negligent. P’s negligence must rise above the level of being “ assumption of the risk

2. Modified a. Jurisdictions that follow the

“no greater than the defendant” approach (50% or lower0 and the “ not as great as the defendant” approach (49% or lower)

ii. Recover= total damages minus P’s % of fault

1. R=TD-P%iii. Policy:

1. Principle of protecting the defenseless is also preserved/ p’s recovery is reduced only to the extent that the p’s own lack of reasonable care resulted in their injury

h. Product misuse ( foreseeable/unforeseeable misuse)i. Manufacturer is not liable for injuries

resulting from the abnormal or unintended use of the product if such use was not reasonably foreseeable

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ii. They are liable for injuries caused from the abnormal or unintended misuse of the product if the misuse is reasonably foreseeable

III. Misrepresentationa. Defintion:

i. A false representation of a factii. Policy:

1. To protect persons from relying upon false information in business and personal dealings

2. To protect the intangible economic interests of persons who are induced to enter into bargaining transactions

iii. Forms 1. Negligent misrepresentation2. Fraudulent misrepresentation

iv. Analysis 1. What’s the tort to be considered? What are the polices

behind the tort of misrepresentation?2. Can the plaintiff establish the prima facie elements for this

tort?3. Does the defendant have a defense?

v. Concealment and Non-disclosure1. Elements of misrepresentation

a. A false representation or concealment of a material fact

b. The representation is made to the P or a 3rd party with the purpose or goal of inducing the P to act or to refrain from acting on the representation

c. P relies on the representation d. P reliance is reasonable or justifiede. P suffers pecuniary losses as a result of his or her

reliance on the representation or concealment of a material fact

2. Some factors considered by courtsa. The uttering of a half truth by the defendant b. any actions on the d’s part to prevent or stop the P

from acquiring information about the condition of the house

c. a showing that the parties were in a fiduciary relationship

d. the parties stoop in a position of confidence with each other contractual relationship

3. At common law the D has a duty to speak up when the following are present:

4. Fiduciary relationships

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a. ex:i. principle/ agent

ii. atty/clientiii. physician/ patientiv. priest/ parishionerv. partners

vi. tenants in commonvii. husband/wife

viii. parent/childix. guardian/ward

5. certain types of contractual relationships at commons law a. those of suertyship and guaranty, joint adventure, or

insurance, were recognized as in themselves creating or involving something of a confidential relation, and hence as requiring the utmost good faith and full and fair disclosure of all material facts

6. two view points in the area of non-disclosure 7. traditional view: absent active concealment or material

misrepresentation, the traditional view holding that there is no duty to disclose no matter how unfair “ caveat emptor”

8. modern trend: where there is a serious and dangerous “latent” defect, known to exist by the seller, then the seller must disclose such defect to the unknowing buyer or suffer liability

9. Definition of “Material”:b. Misrepresentation Made to the plaintiff or Third Persons

i. Fraudulent misrepresentations require proof of fraud, and nothing short will suffice. Fraud is proved when it is shown that a false representation has been made: ( case law)

1. Knowingly; or2. without belief in its truth; or3. recklessly, careless whether it be true or false

ii. 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 implies , or 3. knows that he does not have the basis for his

representationa. for purposes of fraud, “knowledge” is “scienter”

iii. Fraudulent misrepresentation 1. Elements

a. A false representation or concealment of a material fact;

b. the representation with fraud (scienter”;

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c. the representation is made to the plaintiff or a 3rd party with purpose (or goal) of “ inducing” the plaintiff to act or to refrain from acting on the representation

d. the plaintiff relied on he representation e. the plaintiff’s reliance is reasonable or justifiedf. the plaintiff suffers a pecuniary loss as a result of

his or her reliance on the representation or concealment of material fact

i. this defense will fail when:1. when the belief is destitute

lacking of all reasonable foundations

2. the person making the false statement representation has shit his eyes to the facts

3. had purposely decided not to inquire into the facts

iv. Negligence R.3111. One who negligently gives false information o another is

subject to liability for physical harm caused by action by the other in reasonable reliance upon such information

2. Such negligence may consist of failure to exercise reasonable care

a. In ascertaining the information; or b. In the manner in which it is communicated

3. Elementsa. A false representation or concealment of a material

factb. The representation is made with negligence c. the representation is made to the P or a 3rd party

with the purpose or goal of inducing the plaintiff to actor or to refrain from acting on the representation

d. P relies on the representation e. Plaintiffs reliance is reasonable or justified f. Plaintiff suffers pecuniary losses as a result of his or

her reliance on the representation or concealment of material fact

4. Nature of Misrepresentation: misrepresentations (or false representations) can be made either expressly (i.e. through words) or by actions designed to conceal information (i.e. prevent plaintiff from discovering certain information).

1. Concealment and nondisclosure: what types of relationships (i.e. bargaining positions) do not require affirmative disclosure of information? What

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types of statements will not constitute grounds for an action in misrepresentation?

NOTE: review termite infestation dilemma (traditional and modern viewpoints) and cases where statements made do not constitute misrepresentations.

2. Disclosure : situations and circumstances (i.e. relationships) may require the defendant to disclose information (i.e. duty to correct the making of a "half-truth"; defendant "actively" conceals cracks in car engine block; fiduciary or special relationships, etc.). Review cases to pull out additional situations or circumstances.

v. Innocent Misrepresentation R.552C1. One who, in the sale or exchange transaction with another,

makes a misrepresentation of a material fact for the purpose of inducing the other act or to refrain from acting in reliance upon it, is subject to liability to the other for a pecuniary loss caused to him by his justifiable reliance upon the misrepresentation, even though it is not made fraudulently or negligently

c. To third Persons i. actions for misrepresentation can be maintained by the recipient of

the representation or by third parties. 1. Liability to 3rd parties for misrepresentation may be

imposed when the parties (defendant and 3rd parties) are in privity, or a relationship so close to approach privity

a. D must be aware that the ___ will be used for a particular purpose or purposes

b. D must be aware that a known party were intended to rely on the document

c. Conduct on the part of the D linking them to the other party there must be evidence demonstrating a nexus between the accountant and the plaintiff

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ii. Three different approaches taken courts to evaluate liability to third parties that rely on misrepresentation:

1. Credit alliance (majority)a. Rule: liability to 3rd parties for misrepresentation

may be impose when the parties (defendant and 3rd parties) are in privities or in relationships so close as to approach privity

i. Factors for establishing a “relationship”1. When D at least knows the

purpose for which ( the document at issue) to be made

2. 3rd party’s reliance’s on ___3. nexus of relationship b/tw

the parties2. Citizens Bank

a. Liability to 3rd parties is imposed for all foreseeable injuries resulting from the defendants negligence act (except as limited by public policy(ex: remoteness, injury out of proportion to the defendants culpable act,etc.)

i. Public policy factors 1. Remoteness( injury too

remote from the negligence)

2. Proportionality ( the injury is too wholly out of proportion to the culpability of the negligent tort feasor

3.3. Restatement Second Approach(minority)

a. Liability to 3rd parties is imposed only for a limited group of 3rd parties who are expected to gain access to the financial statement information in an expected transaction

d. Reliance i. Key points:

a. P must rely on the false representation or concealment of a material fact

b. P’s reliance must be justified (ex. Reasonable)ii. where reliance is not justified

1. Rule: obviously falsea. One cannot justifiably rely on obviously false

statements.

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b. Courts will refused to act for the relief of a person claiming to have been misled by another’s statements, blindly acts in disregard of knowledge of their falsity, or in disregard of reasonable opportunity to discover the falsity

2. Factors court consider in determining whether the falsity was obvious or could have been detected by ordinary observation?

a. The relationship between the parties (ex: fiduciary)b. The intelligence and life experiences of the misled

party3. Rule: An opinion

a. Opinions are not fraudulent because they fo not ordinarily deceive or mislead. They are statements that are vague, indefinite in their nature and terms, loose, conjectural, exaggerated

b. Opinions are not statement of material facts”4. Future predictions:

a. Generally not liable5. Rule: State of ones mind

a. Generally, a person is not justified in relying on an opinion

b. “puffing” a subset of opinion or ”trade talk” are the types of statements that no reasonably person takes seriously

6. Rule: Misrepresentations of law a. Generally one is not justified in relying on

misrepresentations of law or misrepresentations as to matters concerning the law

7. Two rationales:a. everyone is held to know the lawb. no one without special training, is expect to know

the law..8. exception:

a. a representation or legal opinion given by an atty or judge

e. Damagesi. General point:

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ii. P must suffer pecuniary damages as a result of his or her reliance on the misrepresentation

f. Approaches used by the court to determine damagesi. Out of pocket loss theory (tort recovery)

1. Formulaa. Recovery = price paid- the value of good at the

time of salei. Can get at anytime

ii. Benefit of the bargain rule ( contract recovery)1. Formula

a. Recovery= value of the Good as represented – the value of the good at the time of sale

i. ** look for examples on ecommonsIV. Defamation

a. General Overviewi. Definition

1. Defamation- a communication that tends to damage the plaintiff’s “reputation” more or less in the popular sense

a. E.g= to diminish the respect, good will, confidence or esteem in which the plaintiff is held in the eye of others, or to excite adverse or unpleasant feelings about the plaintiff

ii. Protected interest1. Provide protection against injury to your reputation and

good nameiii. Elements/ test

1. A false statement2. “of and concerning” the plaintiff3. a publication of the false statement;4. injury to reputation

a. P suffers a loss of esteem in the eyes of another, or the false statement about the P deters 3rd persons from associating or dealing with the plaintiff

iv. Types of defamation1. Libel (printed/written)2. Slander (oral)

b. The role of the Judge and Jury i. It is the role of the ct to determine 1st whether the words are

reasonably capable of a particular meaningii. The jury should determine, if, within the context of the statement,

the words would be understood by others as being defamatory1. Basic Rules:

a. If the statement has no defamatory meaning whatsoever, the court can dismiss the case for defamation as a matter of law

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b. If the statement bears only one meaning and the meaning is defamatory, it will be left for the judge to determine if the interpretation of the statement is defamatory

c. if the statement carries the possibility of two meaning ( one defamatory, the other non-defamatory), the court must pass the statement ton to the jury to determine which of the two meanings would be attributed to the statement by those to whom it is addressed or may read it

2. Evaluation:a. Are the alleged statements concerning the P libel/

slander?b. What is defamation as defined by the statute?c. How will the court evaluate a defamatory

statement? i. Ex:it will be evaluated in light of the

context it will be construed in a way in which ordinary persons would understand it

3. Standard for determining whether the meaning of a statement is defamatory

a. As long as someone who hears the statement thinks loses respect or esteem for the plainttiff, then there will be injury to the P, even if they are members of the “non politically correct or non-law abiding group)

c. The defense of truthi. Truth is an affirmative defense to a defamation action

ii. To support defense, the D only has to prove that the statements made about the plaintiff are “substantially” true

d. Pleadingi. Elements

ii. Colloquiumiii. Inducement iv. Innuendov. Special damages when required (ex: in slander actions)

e. Colloquiumi. When pronouns are used ( “he/ she burned down)

ii. When statements are directed at groups individuals iii. When false statements occur in “ works of fiction”

1. Rules :a. Group Defamation

i. Where the group or class libeled is large, generally no one will be able to sue

ii. Where the group or class libeled is small, and each and every member of the group or

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class is referred to, then any individual member can sue

1. Rationale: Such a general condemnation could not reasonably be regarded as referring to each individual or any particular individual within the group

iii. Exception: even If the group is large, a member of the group may have a cause of action for defamation if he/she can demonstrate that some circumstance (facts) points to him or her as the person defamed

iv. R.564A: “one who publishes defamatory content concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

1. The group or class is so small that the matter can be reasonably understood to refer to the member, or

2. The circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member

i. Groups that are generally successful in pursuing group libel action number 25 or less

b. Works of Fiction i. The fictional setting or label will not shield a

defendant from defamation when a reasonable person would understand that the character was a portrayal of the plaintiff

ii. For purposes of defamation actions, when the P is not identified by name, the test for determining whether a fictional character in a book is the plaintiff is:

1. Whether a reader with knowledge of the surrounding circumstances could have reasonably

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understood that the words referred to the P.

2. It is not important that all readers be able to indentify the statement as being about the P. All that is necessary is that one person can indentify the statement as being about the plaintiff

f. Libel and Slander Broadened 1. Libel (printed or written)

a. Common law rule:i. Treated as “per se” actionable without

showing injury to reputation; presumed injury to reputation

b. Expansion of definition:i. The term has been broadened to include

things communications by the sense of sightc. R.568

i. Libel consists of the publication of defamatory matter by written or printed words or by its embodiment in physical form, or by any other form of communication with has the potentially harmful qualities characteristic of written or printed words

2. Slander (oral)a. Common law rule:

i. Not actionable without showing damages. P must show they suffered “special damage” Pecuniary damages from the disparaging words are required

ii. There must be a nexus between the disparaging words and the injury suffered by the plaintiff as a result of the attack on his or her reputation

1. Exception: slander per seb. Expansion of definition:

i. The term has been broadened to include things communications by the sense of hearing

c. R.568i. Slander consists of the publication of

defamatory matter by spoken words,

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transitory gestures, or by any form of communication other than those stated in Subsection 1

g. Defamatory Broadcasts and Slander Per Sei. Broadcasts

1. Rule: the utterance of “ad-libbed” defamatory remarks made over the radio airwaves should be treated as a libel. The speaking of these words over the radio airwaves is potentially as harmful to a defamed person’s reputation as would publishing the words in writing

a. Reasonable to presume damage ii. Slander Per se

1. Statements of major crimes(ex: crimes of moral turpitude);a. Crimes of Moral Turpitude

i. Moral turpitude is personal conduct which goes against public morals. Generally crimes that violate community standards n addition to the law

1. Ex: murder, fraud, rape, arson, robbery, and counterfeiting

ii. “ such conduct is regarded as a black mark against someone’s reputation, and may cause problems in the future after conviction”

1. ex: employment opportunities or activities

2. Loathsome disease (ex: leprosy)3. Business, trade, profession or office (doctors, lawyers,

bankers, mayor)4. Serious sexual misconduct of a female

h. Libel per se and Libel per quodi. Definitions:

1. Libel per se: at common law, all libels were “per se” (actionable without having to demonstrate injury to reputation).

2. Libel per quod: term used when a libel, defamatory statement in writing, is not defamatory on its face and required the reader to be aware of unstated or extrinsic facts in order to appreciate the defamatory meaning

i. Publicationi. Definition:

1. Publication is a “term of art”.

ii. Rule:

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1. P suing for defamation must allege in the complaint and prove (at trial), that the false statement concerning him or her was published.

2. In order to be actionable, the defamatory speech must be communicated to someone other than the P

3. Additionally, the person hearing a slander must understand the meaning of the language

a. ex: when the statement is in a foreign language iii. Single publication rule:

1. The publication of a book, periodical, or newspaper containing defamatory matter gives rise to only ONE cause of action for libel, which accrues at the time of the original publication

2. IL Rule and Statute of Limitationsa. 735 ILCS 5/13-201

i. “actions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued”

b. 740 ILCS 165/1i. “ no person shall have more than one cause

of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibitions of a motion picture. Recovery in any action shall include all damages for nay such tort suffered by the plaintiff in all jurisdictions.”

iv. Defamation and the internet1. Rule:

a. The Communications Decency Act (47 U.S.C. 230 (b)(1),(2) and (4)

i. “ no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider

ii. the statute provides immunity from liability for a Interactive Computer Services/ Internet Service Providers, that publish (communicate) false or defamatory material

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so long as the information was provided by another (ex: 3rd party) and not the publisher

1. to receive immunity, the publisher cannot be an Information Content Provider for the defamatory statement/ or speech at issue

iii. if the publisher (Interactive Computer Service) in a content provider, then the publisher can be liable for defamatory statements about the plaintiff that are posted on its website

2. Public Policya. To promote the free exchange of information and

ideas over the internet (ex: to promote the continued development of the interest)

b. To encourage voluntary monitoring for offensive or obscene material

j. Primary and Secondary Publishersi. Primary/ Original: newspapers, book publishers, magazine

publishers 1. Common law practice:

a. Primary publishers were subject to strict liability for defamation, even though the publisher’s may have innocently taken the defamatory materials from someone else, without notice that the materials contained defamation

i. Note: R.581(a) broadcasting stations (ex: television and radio) should be treated as original or primary publishers for defamation purposes

ii. Secondary publishers: a vendor, or distributor of a news paper, magazine, or book is considered a “secondary publisher” at common law, a secondary publisher is not strictly liable for defamation contained in publications that it sold, of it had no reason to be put on guard or notice that its publication contained defamatory materials

iii. Internet services: prior to the adoption of the communications decency act, internet service providers (ex:AOL, Yahoo, etc.) were classified as secondary publishers

k. First Amendment Policies- Fault Standards-Matters of Public Concerni. U.S. Const. Art. VI, Cl. 2

1. This constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made,

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or which shall be the supreme Law of the Land; and the judge in every State shall be bound thereby

ii. U.S. Const. amend. I1. Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press

iii. U.S. Const. amend. X1. The powers not delegated to the United States by the

constitution nor prohibited by it to the States,are reserved to the States respectively, or to the peropel

iv. Analysis1. Can the P establish the common law test for defamation2. Does the D enjoy a defense or privilege? Ex: truth3. are there 1st amendment concerns in the problem?

a. Is the defamatory speech protected under the 1st Amendment?

v. First Amend. Factors1. Plaintiff’s Status: Private/ Public2. Defendant’s Status: (Private/Media)3. Defamatory Speech ( Matter of Public Concern/ Private

Concern)vi. Important Supreme Court Decisions

1. NY Times v. Sulluvan2. Gertz v. Robert Welch3. Dun & Bradstreet4. Philadelphia Newspapers, Inc. v. Hepps

vii. Constitutional Fault Requirements when Federal Interests are Present

1. The first amendment requires a balancing of both the federal and state interests in defamation cases.

2. When the federal interest is present in a defamation case, the Constitution requires a plaintiff, in addition to proving the common law elements, to also demonstrate “fault”, before the plaintiff can obtain any damages (ex: compensatory or punitive)

3. The Supreme Court has adopted two “fault” standards to ensure protection of the federal interests (ex: First Amendment Speech and Press)

a. The N.Y. Times “actual malice” standard( when the federal interest is high)

b. The Gertz “negligence” standrd ( when to accommodate any state interest involved (ex: private plaintiffs)

viii. First Amendment Fault Standards

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1. Actual Malice (NY Times) Negligence (Gertz) Common Law Presumed Damages/ Punitive Damages When no Federal Interests are Present (Dun & Bradstreet)

ix. Matters of Public Concern1. Rule: “ the commission of crime, prosecutions resulting

from it, and juridical proceedings arising from the prosecutions, however, are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.”

l. First Amendment Fault Standardsi. Public officials

1. Persons with positions in government that are so important that the public has an independent interest in the qualifications and performance of the person who holds it.

2. Persons who have or appear to the public to have substantial responsibility for or control over the conduct of governmental affairs

a. Indicia of public official statusi. Elected official

ii. Candidate for elected officeiii. Judge iv. Appointment by executive officer

3. Rule: (NY Times)a. The constitution delimits a states power to award

damages for libel in actions brought by public officials against critics of their official conduct

b. When defamatory speech concerns a public plaintiff or a matter of public concern, the federal interest in protecting speech is high. The plaintiff will have to overcome an additional federal safeguard before he or she will be allowed to prevail in a defamation action (libel or slander)

c. the constitution guarantees requires a federal rule that prohibits a public official from recovering damage for a defamatory false-hood relating to his official conduct unless he or she proves that the statement was made with “actual malice”- with knowledge that the speech was false or with reckless disregard of whether it was false or not

4. Rule (Thompson)a. The constitutional guarantees require a federal rule

that prohibits a public official from recovering damages for a defamatory false-hood relating to his official conduct unless he or she proves that the statement was made with actual malice with

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knowledge that the speech was false or with reckless disregard of whether it was false or not

b. “actual malice” can be demonstrated by showing that statement about the plaintiff was made with:

i. knowledge that it was false; orii. with reckless disregard of whether it was

false or notiii. Reckless disregard:

a. Reckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing

b. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication (ex: high degree of awareness of probable falsity)

c. the evidence submitted to demonstrated actual malice must meet the “clear and convincing” evidence standard rather than the preponderance of the evidence standard for most tort cases.

i. Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and high probability as to the correctness of the conclusion

ii. proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence of the substantial weight of the evidence, but less than beyond a reasonable doubt.

d. The actual malice standard has been extended to apply to:

i. Speech involving public discussions of qualifications of candidates running for elective office; and

ii. speech on matters of “public concern”ii. Public figure

1. Universal

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a. Individuals who have achieved pervasive fame or notoriety so as to become a public figure for most purposes and in most contexts

i. Examples: renown families such as the Kennedy’s, the Royal Family (England) celebrities, sports athletes, etc.

2. Limiteda. Voluntary : individuals who have voluntarily

injected themselves into a public controversy in order to influence the resolution of the issue involved.

i. Example: the guy leaking classified information from the National Security Agency to the press

b. Involuntary. Those persons who have been thrust into a controversy/public eye through no purposeful action of his or her own (ex: thrown into a controversy due to a relationship with another..)

i. Ex: mel gibsons wife in their divorce action 1. Richard Jewell arrested of

the 1996 Olympic bombing iii. Rule:

a. the constitution guarantees requires a federal rule that prohibits a public official from recovering damage for a defamatory false-hood relating to his official conduct unless he or she proves that the statement was made with “actual malice”- with knowledge that the speech was false or with reckless disregard of whether it was false or not

b. however, when the state’s interest is present in a defamation action (ex: private individuals), as long as the State does not impose liability without fault (ex: presumed injury and punitive damages), the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individuals.

i. Note: the standard for Gertz is “negligence”2. A state may not permit recovery of presumed or punitive

damages t least when liability is not based on a showing of knowledge of falsity or reckless disregard for truth.

a. Punitive and presumed damages will be allowed if the plaintiff demonstrates N.Y. Times “actual malice”

iv. matters of public concern:

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1. whether speech addresses a matter of public concern must be determined by the (expression’s) content, form, and context

a. content i. the nature/subject matter of the speech (ex:

credit report of a private business)b. form

i. credit reports are generally private documents

c. contexti. the credit report was sent out to 5 D&B

subscribers)v. Analysis:

1. Is plaintiff public or private?2. Id the defendant a media or non-media defendant?3. Does the speech that involve a “ matter of public concern”?4. What does the U.S. Constitution require in this situation?

m. 1st Amend. Falsity and Opinion i. Rule: Falsity

1. Common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech involving public concerns

2. When a media defendant is being sued for defamation that concerns speech involving a matter of public concern, the P has the burden of demonstrating that the statement is made both with “fault” ( ex: NY times actual malice or Gertz negligence) AND that the statement is false ( common law presumption of falsity is now longer allowed)

ii. Rule: Opinion 1. The 1st Amendment provides no separate protection for

your “opinion”. The Supreme Court’s First Amendment cases( ex: NY times, Gertz, Philadelphia Newspapers) provide sufficient protection for false statements that constitute opinion

a. The 1st amend. Does not mandate a specific and separate inquiry into whether a statement is either opinion or fact

2. An expression of opinion, however, may often imply an assertion of objective fact.

a. Opinion can be a defense to a defamation action when the opinion refers to underlying facts that are false and defamatory

i. Ex: where there are facts capable of proving the opinion is false)

n. Defenses (common law)i. Truth.

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1. At common law, the burden of establishing truth was on the defendant. Defendant only had to establish “substantial truth”

a. Truth is not a defense when the 1st Amen. Protections (gertz & n.y. times rules) apply.

b. When 1st amend. Concern are present, the plaintiff will have the burden of establishing fault )”actual malice” or “negligence”.

i. The P will have the burden of establishing “falsity” (Ex: that the alleged defamatory statements about him or her are false) when the plaintiff sues the media defendant

ii. Opinion1. Opinion can be a defense to a defamation action but may

also be actionable under defamation law.a. For example, expressions of opinion may often

imply an assertion of objective fact.iii. Privileges

1. A peculiar right, advantage, exemption, power, or immunity held by a person or class, not generally possessed by others

2. Common law privileges:a. Fair comment:

i. At common law, prior to NY Times, the courts had developed ( without reference to the constitution), a privilege of criticism of public officers and their official conduct.)

1. A majority of courts held the privilege was limited to the expression of opinion, and not misstatements of fact

2. It was an affirmative defense. It afforded immunity for the honest expression of opinion on matters of legitimate public interest when the commenting was based on true and privilege statements of fact.

i. It protected statements of opinion. The privilege was used to strike the balance between the

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need for vigorous public disclosure and the need to protect against injuries to reputation

iv. Reporter’s privilege:1. At common law it was a privilege that exempted a

defendant from liability if his/her report of defamatory speech was verbatim or a fair and accurate summary of official proceedings in the public interest, been though the defendant speaker was at fault for defamation

2. Initially, the privilege protected the reporting of all official proceedings in the public interest (ex: sessions of legislative committees, juridical proceedings.)

3. Today, it has been extended to now include: reports filed by officials in the performance of their duties; information of public concern uttered at public meetings, etc.)

v. Absolute & Conditional Privileges1. Absolute:

a. Judicial proceedingsi. An absolute privilege will apply to

participants in judicial proceedings as long as the statements made are pertinent and relevant to issues in the litigation.

ii. Judges have an absolute privilege (protection from civil liability) for defamatory words published in the course of judicial proceedings

iii. Attys are protected for defamatory words made during the course of a judicial proceeding, if relevant and pertinent to the issues in the litigation

iv. Witnesses are extended the privileges even though they voluntarily testify

v. Pleadings. Defamatory statements in pleadings are covered

b. Legislative proceedings i. An absolute privilege will apply to members

of congress and of the state legislatures, in the performance of their legislative functions.

1. Federal and state constitutional provisions have been construed to extend the privilege to anything whatever said in

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the course of the proceedings

ii. Members of congress and state legislatures while in the performance of their legislative functions

iii. Hearings of a legislative body iv. Witnesses testifying before legislative body

c. Public officialsi. An absolute privilege will apply to public

officials in the performance of their official duties

1. High ranking federal executive branch officers. Immunity is afforded to high ranking federal executive officers (ex. Cabinet officials) from defamation liability while acting as their duties require or inherently permit. It also extends to federal agents of lower standing.

2. Some states have extended the absolute privilege to officials of lower rank.

3. Many courts however, hold that official of lower rank are entitled to a qualified privilege only

2. Conditional privileges:a. A condition privilege (qualified) will apply in some

instances for speech that is deemed less important but nonetheless essential.

i. Ex: employee referencesb. Conditional privileges protect speech in various

occasions, even though the speech is defamatory and the occasion is not paramount as under the absolute privilege ( when speech ahs some important social value)

i. Speech was protected (ex: not legally actionable) even though it was defamatory, if it was communicated by the publisher to the recipient where both parties had a reciprocal duty and interest to

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communicated and receive it. (ex: letters of reference)

c. Conditional privilege is defeasible: it can be lost if not exercised properly (ex: the communication is outside the purpose of the privilege)

i. Privilege must be exercised in a reasonable manner and for a proper purpose

ii. Privilege will be forfeited if the defendant steps outside of the scope of the privilege, or abuses the occasion

1. Ex: publication to persons other than those whose hearing of the speech is reasonably believed to be necessary or useful for the furtherance of the common interest between speaker and receiver

3. Factors to consider in determining if the speaker has abused the privilege:

a. The D’s reasonable belief in the truth of the statement;

b. the excessive nature of the language used;c. whether the disclosure was unsolicitedd. whether the communication was made in a proper

manner and only to proper parties4. a defendant cannot claim a qualified or conditional

privilege if he or she knows that his or her defamatory statement is false or does not believe it to be true

o. Remediesi. Damages (compensatory or punitive)

ii. Mitigation of damages (ex: provocation by plaintiff)iii. The “libel – proof” plaintiffiv. P’s bad reputation (reduction of recover)v. Nominal damages

vi. Declaratory reliefvii. Self- help (most import)

viii. Right of response statutes ix. Retraction statutes ( the retraction must be unequivocal and not

partial) x. injunctive relief

V. Invasion of Privacy a. Types

i. False light (publicity that places another in a false light_1. Protected interest: protection against publicity that places

the plaintiff in a false light (false position) in the eyes of the

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public. (protection of plaintiff from being made to appear to public in a position otherwise than as the plaintiff actually is.)

2. R652Ea. 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 othe rfor invasion of his privacy if

i. The false light in which the other was placed would e highly offensive to a reasonable person

3. Elements:a. Statements, comments, implications about the

plaintiff (false)b. Publication (made public)c. Placing plaintiff in a false position in the eyes of the

public (ex: attributing to plaintiff, characteristics, conduct, or beliefs that are false)

d. NY times malice is required if the comments, implications, etc., pertain to a matter of legitimate public concern ( ex: bridge collapse in West Virginia)

4. The tort is similar to defamation in that it is designed to police injuries towards reputation

5. Because it is similar to defamation, the N.Y. Times actual malice rule will apply when the speech involves a matter of public concern

6. In hall v Post the Supreme Court of North Carolina declined to adopt this tort, primarily on the basis that it was duplicative (ex: defamation could police against these concerns)

ii. Appropriation ( of another name of likeness)1. Rule:

a. One who appropriates to his or her own use or benefit the name or likeness of another is subject to liability to the other for the invasion of his privacy (R.652C)

2. Elements***a. Defendant uses the plaintiffs name or likeness;b. The use of the name or likeness is for the

defendants benefit (commercial or non-commercial);

c. plaintiff suffers damages (special (economic) or non-economic general)) due to the use of his or her name;

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d. the D’s use of the name or likeness has caused the damages

3. This tort is generally implicated when D is using P’s photo, name, likeness for economic gain

4. First type of privacy to be recognized by most jurisdictions and the court

a. If it is not a public area is it not an invasion of privacy

i. Sunbathing in a public park 5. General Points

a. The tort protects a persons proprietary interest in the use of his or her name or likeness

b. plaintiff’s injuries can either be personal (ex: humiliation, embarrassment etc.) or economic (i.e. value of name or likeness)

c. It was the first type of invasion of privacy to be recognized by the courts

6. Right to publicitya. It evolved to police against appropriations of

names, likeness, and identity, where the name and likeness of the individual had economic value (celebrities)

b. unlike appropriation tort, the right publicity is statutory and designed to protect the commercial value of the plaintiff’s name or likeness.

c. An important distinguishing feature of the right to publicity is that it is treated as a property right ( they expire when you expire as a person) the right will survive after the death of the plaintiff, unlike the privacy tort of appropriations which expires upon death of the plaintiff

d. it protects against commercial injury, while the right to privacy tort protects against both personal and commercial injuries.

7. Examples:a. Use of race car diver’s car to promote cigarettesb. A sound a like voice (Better Midler)c. the birth name of a famous athlete d. phrases such as “Here’s Johnny” to sell portable

lavatoriese. a stick figure of vanna white

8. Defenses:a. The 1st amendment: newsworthiness and matters

legitimate public concerns (ex: crime reporting, judicial proceedings, public records)

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i. there is a 1st amendment privilege that permits the use of a plaintiff’s name or likeness when that use is made in the context of, or reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern.

b. Matters of public concern:i. “ the commission of crimes, prosecutions

resulting from it, and judicial proceedings arising from the persecutions, however, are without question events of legitimate concern to the public and consequentially fall within the responsibility of the press to report the operations of government.”

iii. Public Disclosure/ Private Facts (offensive facts)1. Liability will be imposed for publication of “private facts”

when “the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

2. Elements:a. Private facts ( facts that are not already available to

the public ex: public records, documents, etc.)b. There must be a publication of the factsc. Disclosure of the facts must be “highly offensive”

to a reasonable persond. The private facts must not be of legitimate public

concern (criminal activity, criminal records, judicial proceedings)

3. Other points:a. There is no publication sufficient for liability if the

publication of the private fact is made to one person only, or a small group of individuals. The publication must be made to a large number of individuals.

b. Persons captured on film incidental to newsworthy reports have no cause of action.

c. There is no liability for public disclosure of private facts if the disclosure concerns facts that are already in the public domain.

4. Problems with this torta. North Carolina has refused to recognize this tort and

holds that it is “constitutionally suspect” because it imposes liability for the disclosure of truthful information

i. Note: in the defamation analysis, the supreme court has held that even flase

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statements may get first amendment protection ( they receive limited breathing space)

iv. Intrusion ( unreasonable intrusion upon seclusion of another)1. Protected interest: the tort protects against intrusion

(physical trespass or non-physical) into spheres from which an ordinary man in plaintiff’s position could reasonably expect that the particular defendant should be excluded).

2. R.652Ba. 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 privacy, if the intrusion would be highly offensive to a reasonable person.

3. Rule:a. An act of intrusion into a private place,

conversation or matter; physical or non- physical)i. Note: is the sphere one in which the plaintiff

has a reasonable expectation of privacy>b. The act is done in a manner that is highly offensive

to a reasonable person ( would the conduct/ act be objectionable to reasonable persons)

4. Examples:a. Secret videotaping in the marital bedroom;b. Wiretapping of phone calls bugging c. Computer hacking into one’s medical records,

other personal informationi. There is no intrusion when the plaintiff is

observed or photographed or recorded in a public place.

v. Intentional Infliction of Emotional Distress and Actual Malice1. See hustler magazine v. flawell2. IIED claim emanating from a publication 3. Public plaintiff (public figures)4. 1st Amendment Protected Speech (Parody)5. Holding: public figures and public officials may not

recover for the tort of intentional infliction of emotional distress by reason of publication (such as parody) without a showing (in addition) that the publication contains a false statement of fact which was made with actual malice.

VI. Misuse of Legal Procedure

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