Acc 473 Chapter 6

libel

a type of defamation in writing or in some other form (such as digital recording) having the quality of permeance (online posts count as libel)

slander

defamation in oral form

ssssslander is sssssspoken

What are the elements of establishing defamation

- the defendant made a false statement of fact

- the statement was understood as being about the plaintiff and tended to harm the plaintiff's reputation

- the statement was published to at least one personal other than the plaintiff

- if the plaintiff is a public figure, they must also prove actual malice

Statement of fact requirement (defamation)

making a negative statement about another person is not defamation unless the statement is false and represents something as fact rather than opinion

the publication requirement (defamation)

the defamatory statements must have been communicated (either intentionally or accidentally) to persons other than the defamed party

what is the purpose of tort law

to provide a remedy (damages) for injury to a protected interest

compensatory damages

a money award for actual damages

$pecial damages

for quantifiable monetary loss, such as medical expenses, property damages, and lost wages and benefits

general damages

an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering

NOT available to companies

need to consider past and future damages (e.g. before date of resolution AND after)

Punitive damages

punish the defendant and deter future similar conduct (only in this scenario will damages consider the defendant in any way)

this is considered when the defendant's conduct was particularly outrageous or shameful (e.g. drunk driving, Ford pinto and exploding cars)

subject to limitations under the U.S. constitution's due process clause

legislative caps on damages

state laws limit the amount of damages -- both punitive and general -- that can be awarded to the plaintiff

What are the two classifications of torts?

intentional torts and unintentional torts

tortfeasor

a person who commits a tort, they intended the consequences of their act OR they knew with substantial certainty that certain consequences would result

What are the elements of ASSAULT

- intentional

- unexcused threat of immediate harmful or offensive contact (whether words or acts)

- that create a reasonably believable threat

- no physical contact is necessary for an assault to occur

What are the elements of BATTERY

it is the completion of assault

- unexcused

- harmful or offensive contact

- intentionally performed

-contact can be made by defendant or some force set in motion by the defendant

transferred intent

intent of tortfeasor is transferred when he intends to harm Person A but unintentionally harms Person B as well

What are the elements of false imprisonment

the intentional confinement or restraint of another person's activities without justification

- the confinement can be through physical barriers, restraint, or threats of physical force

What is shopkeepers defense to false imprisonment?

Someone steals items from the store. The shopkeeper can use reasonable detention and reasonable force to keep the person from leaving until authorities arrive

reasonable detention --> "I saw evidence of you doing this"

reasonable force --> "please walk with me over to this room"

Intentional infliction of emotional distress (IIED)

an intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

to be actionable, the act must be extreme and outrageous to the point that it exceeds the bounds of decency accepted by society

Defended to IIED

- the legal fiction of corporate personhood does not extend to IIED claims, as corporations lack the ability to experience emotions

- if the plaintiff gives consent to the outrageous conduct that leads to an IIED, the lawsuit is unlikely to proceed

- outrageous conduct that is normal under the circumstances is usually not actionable

- when the outrageous conduct consists of speech about a public figure, the First Amendment's guarantee of freedom of speech limits emotional distress claims

Defamation

the law imposes a general duty on all persons to refrain from making false, defamatory statements of facts about others, in writing or orally

tort

a civil wrong not arising from a breach of contract; a breach of a legal duty that proximately causes harm or injury to another

Damages for libel

- the plaintiff does not need to prove that they were actually harmed in any specific way as a result of the libelous statement to recover damages

- general damages are designed to compensate the plaintiff for harms such as humiliation, injured reputation, and emotional distress

Damages for slander

the plaintiff must show special damages (that the slanderous statement caused them to suffer actual economic or monetary losses)

Slander per se

if a false statement constitutes "slander per se," is is actionable with no proof of special damages required

- a statement that another has a "loathsome" disease (STD)

- a statement that another person has committed improprieties while engaging in a profession or trade

- a statement that another has committed or has been imprisoned for a serious crime

- a statement that a person is unchaste or has engages in serious sexual misconduct

Defenses for defamation

- truth is an absolute defense against a defamation charge

- privileged speech

Two types of privileged speech

absolute: only in judicial proceedings and certain government proceedings is an absolute privilege granted

qualified: if the statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication (e.g. management report on an employee)

Public figures are actual malice

False and defamatory statements made about public figures are privileged (allowed) unless they are made with actual malice

need clear and convincing standard of proof

actual malice

either knowledge of falsity OR reckless disregard of the truth or falsity (e.g. Depp v. Heard Case)

Appropriation

- use of another's name, likeness, or other identifying characteristic

-for commercial purposes

- without the owner's consent

(e.g. hocus pocus woman commercial singing / photo of someone on your wall saying you have the best food without permission)

fraudulent misrepresentation

any misrepresentation, either by misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to their detriment

what are the elements of fraudulent misrepresentation

- a misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth

- an intent to induce another party to rely on the misrepresentation

- a justifiable reliance on the misrepresentation by the deceived party (others must not know it is fraud)

- damages suffered as a result of that reliance

- a casual connection between the misrepresentation and the injury suffered

puffery

a salesperson's exaggerated claims concerning the quality of goods offered for sale (more than this needs to be achieved in order to bring a claim)

malicious prosecution

if a party initiates a lawsuit out of malice and without a legitimate legal reason, and end up losing the suit, that party can be sued for malicious prosecution

abuse of process

abuse of process can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed

what are the two types of interference wrongful interference

Interference with a contractual relationship AND interference with a business relationship

Wrongful interference with a contractual relationship

elements are as follows:

- a valid, enforceable contract must exist between two parties

- a third party must KNOW that this contract exists

- this third party must intentionally induce a party to the contract to breach the contract (so that the third person can get a benefit)

EXAMPLES: Martha Stewart had an arrangement with Macy's, but JC Penny ersuaded Martha Stewart to work with them instead KNOWNG there was a prior arrangement with Macy's. Macy's can sue for breach of a contractual relationship. This can also happen between companies and suppliers

Wrongful interference with a business relationships

Business persons are prohibited from unreasonably interfering with another's business in their attempts to gain a greater share of the market

elements are as follows:

-the defendant used predatory methods to intentionally harm

- an established business relationship or

- gain a prospective economic advantage

defenses to wrongful interference

- a person will not be held liable for the tort of wrongful interference with a contractual or business relationship if it can be shown that the interference was justified or permissible

- Bona fide competitive behavior -- such as marketing and advertising -- is permissible interference even if it results in the breaking of a contract

Intentional torts against property

wrongful actions that interfere with individuals' legally recognized rights with regard to their property

examples include:

- trespass to land

- trespass to personal property

-conversion

- disparagement of property

the law distinguishes real property from personal property

Real Property vs. Personal Property

Real property: land and things permanently attached to the land, such as a house

personal property (chattel): consists of all other items, including cash and securities

Trespass to land

occurs when a person, without permission, does any of the following (actual harm to the land is not an essential element of this tort) :

- enters onto, above, or below the surface of land that is owned by another

-causes anything to enter onto land owned by another

-remains on land owned by. another or permits anything to remain on it

liability for harm (trespass to land)

at common law, trespasser is liable for any damage caused to the property and generally cannot hold the owner liable for injuries that the trespasser sustains. This is being modified in many jurisdictions, however, in favor of a reasonable duty of care rule (potential first responders being injured)

Defenses to trespass to land

- one defense to a claim of trespass is to show that the trespass was warranted (assisting someone in danger)

-trespasser shows that they had a license to come onto the land (a person who enters another property to read an electric meter)

Licensee

one who receives a license to use, or enter onto, another's property

Trespass to personal property

the unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of their personal property (harm not only means destruction, but also anything that diminishes the value, condition, or quality of the property

Conversion

the wrongful taking, using, or retaining possession of personal property that belongs to another ("civil theft")

failure to return the goods: even when the rightful owner consented to the initial taking of the property, a failure to return the property may still be conversion

- good intentions are not a defense against conversion

- conversion can occur even when a person mistakenly believed that they were entitled to the goods

Disparagement of property

an economically injurious false statement made about another's product or property; a general term for torts that are more specifically referred to as slander of quality or slander of title

Slander of quality (trade libel)

the puiblication of false information about another's product, alleging that it is not what its seller claims

the plaintiff must prove that improper publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages as a result

Examples: stolen goods or claiming that a product gave you a sickness

slander of title

the publication of a statement that falsely denies or casts doubt on another's legal ownership of property, causing financial loss to that property's owner

Negligence

the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances

elements are as follows:

- the defendant owed a duty of care to the plaintiff

- the defendant breached that duty

- the defendant's breach is the causation of the plaintiff's injury

- the plaintiff suffered legally recognized Damages

duty of care

the duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others.

failure to exercise due care, which is normally determined by the "reasonable standard," constitutes the tort of negligence

elements are as follows:

- The nature of the act (whether it was outrageous or commonplace)

- the manner in which the act was performance (cautiously versus uncaustiously)

-the nature of the injury (whether it is serious or slight)

The reasonable person standard

the standard of behavior expected of a hypothetical "reasonable person"; the standard against which negligence is measured and that must be observed to avoid liability for negligence

- the reasonable person standard is not necessarily how a particular person would act, but rather society's judgement of how an ordanarily prudent person should act

- the degree of care to be exercised varies, depending on the defendant's occupation or profession, their relationship with the plaintiff, and other factors

The duty of landowners

- landowners are expected to exercise reasonable care to protect individuals coming onto their property from harm

- retailers and other business operators have a duty to exercise reasonable care to business invitees and warm them of foreseeable risks such as wet floors

the duty of professionals

- the law takes the professional's training and expertise into account

- negligence on the part of a professional is commonly referred to as malpractice

malpractice

professional misconduct or the failure to exercise the requisite degree of skill as a professional

What are the two questions that courts ask for causation?

1. Is there causation in fact?

2. Was the act the proximate, or legal, cause of the injury?

causation in fact (actual cause)

an act or omission without (but for) which an even would not have occurred

"If you would have stopped, I wouldn't have gotten hurt"

proximate cause

legal cause; exists when the connection between an act an an injury is strong enough is justify imposing liability

must be foreseeable for there to be proxiamte cause

foreseeability

questions of proximate caused are linked to the concept of foreseeability because it would be unfair to impose liability on a defnedant unless the defendant's actions created a foreseeable risk of injury

generally, if the victim or the consequences of harm done were unforseeable, there is NO PROXIMATE CAUSE

Example: the fireworks and the railroad station

If the plaintiff has not suffered some loss, harm, wrong, or invasion of a protected interested..

there is nothing to compensate and therefore no tort exists

Compensatory damages

the norm in negligent cases

When will a court award punitive damages?

only if the defendant's conduct was grossly negligent, reflecting an intentional failure to perform a duty with reckless disregard of the consequences to others

good samaritan statute

a state statute that provides that persons who rescue or provide emergency services to others in peril -- unless the do so recklessly, thus causing further harm -- cannot be sued for negligence

passed largely to protect physicians and medical personnel who volunteer their services in emergency situations to those in need, such as those in car accidents

Dram shop act

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication

some states even impose liability on social hosts for people who became intoxicated in their homes

Defenses to Negligence

- assumption of risk

- superseding cause

- contributory and

- comparative negligence

Assumption of risk

can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger

- a plaintiff who voluntarily enters into a risk situation, knowing the risk involved, will not be allowed to recover

- the defense of assumption of risk is frequently asserted when the plaintiff was injured during the recreational activity that involved known risk

Superseding cause

an intervening force or event that breaks the connection between a wrongful act and an injury to another

a superseding cause relieves the defendant of liability

"you are respnsible for the bike crash, but the dog bite that was sutained by the other person afterwards since they were there due to the crash"

Contributory negligence

a theory in tort law under which a complaining party's own negligence contributed to or cause their injuries

is an absolute bar to recovery in a minority of jurisdictions

today, only a few jurisdictions will follow this doctrine

"you are awarded this amount, but you will never actually receive it"

comparative neglignece

a theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party) on the basis of each person's proportionate negligence

"you're 30% liable, so you are awarded 100k but will only actually receive 70k" (30% deduction, proportionate with their share of negligence)