Torts
TORTS
Intentional Torts
Prima Facie Case: To establish a prima facie case for intentional tort liability, the plaintiff must prove the act, intent, and causation.
Intent: to act with purpose to intrude, or in a way where the intrusion is substantially certain to happen.
Intent is tailored to the intentional tort.
The actor does not need to intend injury.
Intent is not negated because of mental incapacitation or mistakes.
Example: Defendant is at the shooting range and sees another person on the range. Defendant aims the gun at that person and fires the gun.
Transferred Intent: Defendant intended to commit a tort against one person but instead (1) commits a different tort against that person, (2) commits the same intended tort against another person, or (3) commits a different tort against another person.
The intent to commit the tort against one person is transferred to the other tort or third person.
The purpose is to deter people from committing intentional torts.
Transferred Intent does not apply to Intentional Infliction of Emotional Distress or conversion.
Example: Defendant is at the shooting range and knows another person is at the range. The defendant points the gun at the person and pulls the trigger. The bullet goes through that person and then hits another person who walked into the line of fire. The intentional battery cause of action would transfer to that third person.
Assault: Intentionally causing a reasonable apprehension of imminent harmful or offensive contact to the plaintiff’s person.
Apprehension is to be aware and does not require fear.
Imminent means it is about to happen. This is to limit liability claims.
Harmful contact is something that causes injury.
Offensive (unpermitted) contact is something which violates a person’s sense of dignity.
Example: Defendant is on a bus with another person. The defendant threatens to punch the person while lifting his fist. The defendant and other person are next to each other. The other person is aware that imminent harmful contact is about to occur.
Example: Defendant is on a bus with another person. The defendant threatens to pull down the other person’s pants while reaching towards the person. The other person is aware that an imminent offensive contact is about to occur. This offensive because it violates the person’s sense of dignity (a clothed body while on the bus).
Battery: Intentionally causing a harmful or offensive contact to the plaintiff’s person.
Plaintiff’s person is anything connected to the plaintiff.
Defendant can be liable for indirect contact as long as he sets in motion a force that brings harmful or offensive contact to the plaintiff’s person.
Example: Defendant is at the office with the coworker. Defendant punches the coworker in the fact. The defendant intentionally caused harmful contact to the coworker.
Example: Defendant is at the office with a coworker. Defendant pulls down the coworker’s pants in front of a crowd. The defendant intentionally caused an offensive contact because the clothing was intimately connected to the coworker’s person.
False Imprisonment: Intentional confinement of another of which they are aware or injured by.
Confinement: Act of imprisoning or restraining someone where there is no reasonable escape route.
Cannot avoid escaping because there is a slight inconvenience.
Injured: Actionable invasion of a legally protected interest. Doesn’t have to mean harm. Real injuries (wounds), verbal injuries (slander), criminal wrongs (assault), or civil wrongs (defamation)
Shopkeeper Privilege: there must be reasonable belief that the theft occurred, and the detention must be conducted in a reasonable manner for a reasonable amount of time.
Example: Defendant ties up a person in a basement and then refuses to let them go. The defendant intentionally confused the person, and that person was aware.
Example: Defenant is a manager at a party store and sees a person put something in their pocket. Defendant believes that the person stole the product. The defendant can question the person until they determine if a product was stolen or if they are waiting for police to come. The defendant must let the person go if the defendant determines a theft has not occurred.
Intentional Inflection of Emotional Distress (IIED): Extreme and outrageous conduct with the intention to cause, or reckless regard of the ability to cause severe emotional distress, and that person suffered severe emotional distress.
Extreme and Outrageous: Character exceeds the boundaries (what is acceptable) of a civilized society.
Severe Emotional Distress: So severe that no reasonable person could be expected to endure it.
Most cases are dismissed by summary judgment.
This is to limit who can recover.
There is more success when you attach the IIED claim to another intentional tort.
Example: Defendant is constantly harassing a coworker. He repeatedly calls the coworker names, belittles the coworker, and makes threats towards the coworker. The coworker has asked him to stop but defendant continues to harass the coworker. The coworker has to go to a mental health facility and after he is released, he tells the defendant it was due to the defendant’s actions. The defendant continues to harass and belittle the coworker causing them to again be hospitalized.
Trespass to Land: Intentional interference with one’s exclusive right to possess land.
Plaintiff does not have to prove harm.
If defendant is liable, plaintiff will be awarded nominal damages.
The plaintiff does not need to prove that the defendant knew he was on another person’s land.
A defendant can trespass to the air or below ground of someone’s land.
A person who is currently leasing the property as the right of possession. If a third party were to trespass on the land, the person with the right of possession would have the claim for trespass.
Example: Defendant is walking down the road and decides to enter a person’s land to look at their flowers alongside the house. The plaintiff can prove trespassing because the defendant is physically standing on the plaintiff’s land.
Example: Defendant is driving a car along the street, loses control of the car and negligently runs off the road and into the plaintiff’s yard. The plaintiff must choose between the intentional tort of trespass to land and negligence. The car entered the plaintiff’s land; however, the defendant did not intend for the car to be in the yard. If the defendant exited the vehicle he would be intentionally trespassing.
Example: Shooting a gun over someone’s land. Purposely driving a golfcart onto another person’s land. Digging a tunnel under someone’s property.
Trespass to Chattel: Intentional interference with one’s right to possess chattel resulting in harm (which is less than the chattel’s full market value).
Plaintiff must prove harm. This is to limit frivolous claims.
Interference: Act of obstructing normal operations
Intermeddling: Conduct by the defendant to directly damage the plaintiff’s chattel (denting car, striking dog).
Dispossession: Conduct by the defendant to dispossess plaintiff his lawful right to possession.
Harm: injury, loss, damage; material or intangible.
Example: Defendant intentionally took plaintiff’s car but then returned it, undamaged, two days later. Or defendant took his classmates study materials causing him to not be able to study the night before the exam.
Conversion: Intentional exercise of dominion or control over a chattel which so seriously interferes with the plaintiff’s right to control that the actor may justly be required to pay full value of the chattel.
To determine the seriousness of the interference:
The extent and duration of the actor’s exercise of dominion of control
The actor’s intent to assert a right is in fact inconsistent with the other’s right of control.
The actor’s good faith
The extent and duration of the resulting interference with the other’s right of control
The harm done to the chattel.
The inconvenience and expense cause to the other.
Example: Defendant takes the plaintiff’s cellphone and then throws it into a lake. The phone is not recoverable, and the plaintiff wants the full market value.
Example: Defendant takes coworker’s car and claims it is his own. Defendant then sells that car to a third person. Plaintiff seeks recovery for the full market value.
Consent to Intentional Torts
Consent: Willingness for the conduct to occur. It may be manifested by action or inaction.
Expressed Consent: Actual consent through words or gestures. Example: Plaintiff says, yes you can give me a shot.
Implied Consent: Was it reasonable for the defendant to believe that the intrusion was authorized even though no expressed consent was given.
Example: touching the person’s back to guide them out of a burning building.
Example: Two friends always punch each other to say hello. Time passes and they run into each other, and the defendant punches him even though he has an injured arm.
Example: Coach shows team how winning teams dump water on the coach’s head. The team wins and then they dump cold water on the coach’s head.
Emergencies: Consent will be implied when there are circumstances where the need for medical care is immediate to avoid serious injury or death.
Example: Minor comes in with a gunshot wound and there is no one there to consent. The doctors will provide lifesaving measures.
Medical Care for Adults: Medical practitioners are required, whenever possible, to obtain consent expressly from patients before administering care or otherwise face tort liability for “medical battery.”
Consent can only be obtained if the patient is advised of the risks with medical care.
A doctor can reasonably imply consent from the patient due to intoxication, and mental or physical incapacity.
A male nurse may have committed a battery if he participates in the delivery of a plaintiff’s baby when it is against her religion.
Medical Care for Children: In most cases, children lack the capacity to expressly consent and courts require consent from a parent for the treatment to be legally authorized. Doctor can petition the court to obtain consent. Parent and doctor can be liable if the child files a claim.
Consent may be void if:
Plaintiff lacked capacity to consent. This is the ability to evaluate the circumstances and weigh the risks. (i.e. maturity, intoxication, mental defect).
Plaintiff is involved in the type of conduct that the law forbids consenting to. (underage sex)
Plaintiff was coerced into consenting.
Defendant misrepresented the circumstances that led to the intrusion.
Defendant was aware that the plaintiff misunderstood and acted in the face of the misunderstanding.
Defenses to Intentional Torts
Self Defense: A person is privileged to use reasonable force to defend herself from a harmful intrusion provided she has reasonable belief (even if it is mistaken) that force is necessary to avoid the intrusion.
Retreat is not necessary. Stand your ground.
Castle Doctrine: A person has the right to use reasonable force, including deadly force, to protect themselves against an intruder in their home.
Defense to Others: Actor is privileged to defend a third person from a harmful or offensive contact under the same conditions and by the same means as he is privileged to defend himself. Must have a reasonable belief that his intervention is necessary to protect the third person.
Protection of Property: A person can use reasonable force to protect his property. The defendant cannot use force which will cause death or great bodily harm.
Recapture Property/Chattel: A person can use reasonable force to recapture property if there is a fresh pursuit, if they keep the peace, and there is a demand for the property to be returned.
Fresh Pursuit: if he acts promptly after dispossession or after timely discovery of it.
Keep the peace: Cannot breach the peace.
Demand: The person seeking repossession must first articulate a demand before taking recapture actions.
If the demand is rejected, reasonable force may be authorized to secure property and defend one’s own person.
Public Necessity: A defendant has privilege if he acted to avert a public disaster as long as he had reasonable belief that there was an imminent threat of harm. The actor will not be liable for damages.
Private Necessity: A person is privileged to enter or remain on the land in the possession of another if it is or reasonably appears to be necessary to prevent serious injury to the actor, his land or chattels, or those of a third person.
It is an incomplete defense, and the actor is liable for any harm that results from the intrusion.
Negligence Claims
Prima facie case must prove duty, breach, causation, and harm.
Duty: An actor must behave as a reasonably prudent person under the same circumstances. (They must conform to a specific standard of care). No duty is imposed on a person to take precautions against unforeseen events. This includes people in the “zone of danger.”
Breach of Duty: Plaintiff must prove the defendant breached the standard of care through irresponsible or unreasonable conduct.
Causation: The plaintiff must prove “cause in fact” and “proximate cause”.
Cause in Fact: The defendant’s conduct was the actual cause of the plaintiff’s injuries.
Proximate Cause: establishes a sufficiently close connection between the breach and the harm (i.e. foreseeability).
Damages: Plaintiff must prove that the defendant’s breach caused some type of actual harm.
Duty
Duty: the legal obligation to conform to a reasonable person’s standard of care to protect others against unreasonable risks of harm which are foreseeable.
No Duty to Act Exceptions:
Misfeasance: Where the defendant subsequently and affirmatively does an act in any matter that otherwise creates a position of peril with respect to the victim, a duty will be imposed upon the defendant to act in a non-negligent manner. The defendant will be required to take reasonable efforts to aid or assist anyone who otherwise has been imperiled by defendant’s misconduct.
Nonfeasance: Absent any legally recognized duty of care owed to a victim by the defendant, the law of negligence requires no affirmative duty to act whatsoever. The negligence law does not impose an affirmative duty on the part of anyone to render aid or assistance to another who is in peril, so long as there is no special duty.
Yania v. Bigan: Defendant landowner asked the plaintiff decedent to assist him in starting a pump to remove water from his strip-mining trench. But then just stood by and watched as the decedent, while attempting to assist the defendant, drowned after jumping into a steep-sided water-filled trench. The court dismissed plaintiff’s complaint because the mere fact the defendant was in a position of peril did not impose a legal (although moral) obligation or duty for the defendant to rescue him unless the defendant was responsible for placing the decedent in a perilous position.
Rescuer Doctrine: Danger invites Rescue. Where the defendant’s negligence places any person in a position of peril, the defendant owes an affirmative duty to anyone else who may be injured while
attempting to rescue that victim even though originally no duty may have been owed to the rescuer. The rescuer must act reasonable.
Clinkscales v. Nelson Securities, Inc. A marine was at the bar when a fire broke out on the grill. The bar employee was aware that there was a small grease fire and did not take the steps to stop it. A fire burst underneath the grill and the employee couldn’t put it out. The patrons were supposedly told to leave. The marine intervened due to his prior training and realization of the severity of the situation. The marine was burned. A reasonable jury could find the marine’s rescue of the bar’s employees, patrons, and property was an act done in normal or natural response to the fear or emotional disturbance caused by the bar’s negligence.
Special relationships: Relationships where the law of negligence recognizes an affirmative duty owed by the defendant to act in some prescribed manner to the plaintiff.
Common carrier-passenger (non-delegable duty for brakes); innkeeper-guest; landowner-lawful entrant; employer-employee; jailer-prisoner; school-student; parent-child; husband-wife; store-customer; Doctor and patient.
Lawson v. Superior Court: Mother incarcerated, and daughter needed medical treatment. Jail did not seek treatment despite mom’s requests. The nurse went against doctor’s orders and took the child for treatment. Court found child had no other means to obtain medical care—special duty relationship duty arose.
Volpe v. Gallagher: ∆ allowed her mentally ill son to keep guns and ammunition on the property. ∆ aware of violent past and a reasonable person would have seen the guns inside the home. The court found a duty arose because ∆’s son’s acts were foreseeable.
Thompson v. County of Almeda: ∆’s son released from confinement. ∆ did not tell π’s that their son was a risk of harm to others. Son murdered neighbor π’s son within 24 hours of release. Threats not precise. No duty to warn community at large.
Tarasoff v. Regents of University of California: π’s child was killed. Alleged ∆ was aware two months earlier when suspect confided in doctor. Medical personnel owed a duty. Police did not.
Most special relationships impose a duty to exercise reasonable care to protect, rescue, or aid the plaintiff. They do not impose a duty to exercise control over third parties dangerous to the plaintiff.
A custodian and ward, however, can impose a duty to control dangerous third parties if the custodian (1) knowns or has reason to know that he has the ability to control the conduct of the third person, and (2) knows or should have known the necessity and opportunity to exercise such control.
Tarasoff Duty: Once a therapist does in fact determine, or under applicable professional standards reasonable should have determined, that a patient poses a serious danger of violence to others, be bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.
Employers have a duty to control a dangerous employee when the employee is on the employer’s land or using the employer’s chattel. The employer must know or have reason to know he can control the employee and know or have reason to know that it was necessary.
Parents have a duty to control their children.
Negligent Infliction of Emotional Distress: Courts have allowed a plaintiff to recover for emotional distress that accompanies some other physical harm. A plaintiff can seek recovery for non-physical injuries because of the defendant’s negligence. The plaintiff must prove that they were exposed to a physical risk by the defendant’s negligence and then had a physical manifestation in response to the emotional distress. Mishandling of a corpse.
Zone of Danger (near miss): When the plaintiff is in a near miss situation (next to a collision) and later has physical manifestations from the physical distress.
Impact Rule: A plaintiff could not recover from a near miss but instead would need to show there was at least some actual physical impact with the plaintiff’s person, however slight, whether or not the impact resulted in a physical injury.
Bystander: Can recover even if the plaintiff is not within the zone of danger if there was a close relationship between the bystander and the victim. The plaintiff must (1) be closely related to the victim, (2) be physically present at the scene of the original accident, actually witnessing the injury to the victim, and (3) suffers severe emotional distress as a result of witnessing the accident.
Duty for Economic Harm (Economic Loss Doctrine): A plaintiff cannot recover for economic harm unless there is also personal injury or property damage. This is a policy to reasonably apportion liability.
532 Madison Ave Gourmet Foods, Inc. v Finlandia…: π lost income to business because street was shut down after a 39-store building collapsed onto the street. Π’s building did not suffer property damage.
Duty for an Unborn Child:
Wrongful pregnancy: doctor negligently failed to prevent conception of a child- failed tubal ligation or vasectomy. Claims are recognized but courts are not willing to grant child-rearing expenses. Mother can recover for her pain and suffering during pregnancy and delivery, costs of the failed sterilization procedure, medical expenses form the pregnancy, and lost wages.
Wrongful birth: π asserts that but for the doctor’s negligent testing or counsel, she would have terminated her pregnancy to not have a child born with serious defects. Some jurisdictions allow recovery. Courts that do allow the claims will allow for extraordinary child-rearing expenses arising for the child’s special needs. Some courts limit recovery to only those years when the child is a minor.
Wrongful Death: claim may not be maintained for the death of an unborn child.
Wrongful Life: cause of action brought by or on behalf of a defective child who claims that but not for the ∆ doctor’s negligent advice or treatment of its parents, the child would not have been born. A child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during majority.
Endresz v. Friedberg: π injured in a car accident while 7 months pregnant. Delivered stillborn twins two days later. Brought wrongful death claims. No recovery because the children were not born.
Procanik by Procanik v. Cillo: infant child π brought a wrongful life claim through his mother and GAL. Alleged that doctor failed to dx mother with German measles in 1st trimester. Π born with congenital rubella syndrome. Recovery for medical expenses.
Duty Limited by Entrance Status on Land
Breach of Duty
Was the Defendant Negligent?
Probability of harm
Significance (substantial) of any harm which might occur.
Burden on the defendant to protect against the harm.
Utility of the conduct that the defendant was participating in. Social value of the allowing it to happen or preventing it.
Standards of Care:
Proofs of Negligence
Res Ipsa Loquitur: Circumstantial evidence doctrine (“the thing speaks for itself”) which deals with situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty. It is used by the plaintiff to get past summary disposition.
The accident or occurrence that caused the plaintiff’s injury would not ordinarily happen in the absence of negligence.
The instrumentality or agency that caused the plaintiff’s injuries was in exclusive control of the defendant.
The plaintiff did not contribute to the accident or occurrence.
Negligence Per Se: An unexcused violation of a statute or administrative regulation which is adopted by the court as defining the standard of conduct for a reasonable person.
A plaintiff must prove the class harm test:
The plaintiff was a member of the class of persons the statute was designed to protect, and
The plaintiff suffered the type of harm the statute was designed to prevent.
A violation of the statute only establishes duty and breach of duty. The plaintiff must still prove causation and damages.
If the court does not rule in favor of negligence per se, the plaintiff can seek recovery from common law negligence.
Causation
Actual Causation (Cause in Fact): Before the defendant’s conduct can be considered a proximate cause of the plaintiff’s injury, it must first be a cause in fact of the injury. Several tests exist.
But For Test: The defendant’s act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act.
A man was on a vessel which did not have lifejackets. The man fell overboard directly into a shark’s mouth. The decedent’s wife sued for the captain’s negligence for not having lifejackets onboard. The court found that the captain had a duty to operate the boat as a reasonably prudent person which meant breaking life jackets. The captain breached that duty by not bringing life jackets. BUT the man would have still died if the lifejackets were onsite because he did not drown and instead was eaten by a shark.
Substantial Factor: Multiple defendant’s actions comingled to cause the plaintiff’s harm. This applies when several acts combine to cause the injury, but none of the acts standing alone would be sufficient.
There were fires on two properties which combined and burned down the plaintiff’s house. The defendant’s conduct is comingled and the joint cause of the plaintiff’s harm.
Pollutants: chemicals in the waterway killing fish or factories releasing smoke into the air which hurts cattle.
Burden Shift: When there are two or more defendants and the plaintiff was injured by one of them, but the plaintiff cannot determine which defendant caused the injury. The burden shifts to the defendant, to show his negligence is not the actual cause.
Market Share Liability: A defendant is only responsible for their percentage of the market share unless they can convince the court that they were not liable.
Proximate Causation: This is a limitation placed on the defendant’s liability for unforeseeable or unusual consequences. Policy: to impose limitations on long and elaborate causal chains connected to a defendant’s act.
Directly Traceable Test (In re Polemis): There has to be a direct line (uninterrupted chain) between the harm and the defendant’s negligence (no intervening factors). Rejects foreseeability is the minority opinion.
Foreseeability: A defendant is not liable to an injured victim if the harm was not foreseeable. The plaintiff must be a foreseeable victim. Majority Rule.
Intervening Act: A negligent act which occurs between the defendant’s conduct and the plaintiff’s harm which is foreseeable.
The defendant is always liable for the following intervening acts: subsequent medical malpractice, negligent rescue, reaction forces by other people which causes harm, and subsequent diseases and accidents.
The following are superseding acts if they are foreseeable: third party negligence (defendant blocks the sidewalk and pedestrian must walk in the road. A pedestrian is then hit by a vehicle); criminal conduct of a third party (defendant left side door of the building open. A third party comes in through the door and assaults the victim. The purpose of the side door being closed was to protect form intruders and keep patrons safe); and acts of God (roofer was listening to the radio and knew strong winds were coming. The roofer leaves materials on the roof and the storm comes. The materials flew off and hit a pedestrian in the street. Foreseeable because the roofer knew the weather).
Superseding Act: An unforeseen act between the defendant’s conduct and the plaintiff’s harm which was not foreseeable. The superseding acts break the chain of liability, and the defendant is not liable for any further harm.
Intentional torts by a third party are not foreseeable.
Thin-Skulled Plaintiff: The negligent defendant is liable for the resulting harm even though the harm is increased by the plaintiff’s condition at the time of the negligent conduct. You take people as they are. You are responsible for the injuries you exacerbate.
Damages
A plaintiff must prove actual harm or injury for negligence cases.
Nominal damages: are rarely awarded. There are strong policies for when they are allowed.
Compensatory Damages: Offered to compensate for the harm traced to the wrong. The policy is to compensate victims and to deter tortious conduct.
Personal Injury: Past and future medical expenses (economic), past and future loss of income (economic), pain and suffering (noneconomic).
Loss of future earnings: The amount will be reduced based on the rate of investment. This is to grant the plaintiff the amount of money the jury wished for him to have.
Punitive Damages: Punitive damages are generally not available in negligence cases unless the defendant’s conduct was “wanton and willful,” reckless, or malicious. The goal is to deter and punish.
Common Law Malice: to recover punitive damages. Intending injury or acting with reckless disregard as to whether injury would occur.
The defendant desires to cause the harm sustained by the plaintiff or believes that the harm is substantially certain to follow his conduct.
The defendant continues his conduct despite knowing or should have known that his conduct creates an unreasonable risk of harm and that there is a strong probability that the harm will result.
Gore Rule: Judicial review to determine if the punitive damages awarded by the jury were grossly excessive.
Reprehensibility of the defendant’s conduct (physical instead of economic, disregard to public health and safety, multiple instances)
Ratio between the punitive damages and compensatory award (single digit multipliers are more likely to align with due process).
Comparison with penalties awarded in related cases (civil or criminal).
Remittitur: Put in place to protect the plaintiff’s 7th Amendment right. (1) Damages too high awarded by jury, (2) Right to matter in front of a jury, (3) Court reassesses damages by Gore, and (4) Gives π choice between remittitur (choose to lower damages) or new trial.
Duty to Mitigate: The plaintiff has a duty to take reasonable steps to mitigate damages (i.e. seek appropriate treatment or seek a job with a comparative salary). Failure to mitigate damages precludes recovery of additional damages caused by aggravation of the injury.
Maritime Law (federal): Cases are capped at 1:1 ration for punitive and compensatory damages, as decided by SCOTUS.
Collateral Source Rule: Payments made to, or benefits conferred on the injured party (plaintiff) from other sources (outside of the tortfeasor) are not credited against the tortfeasor’s liability, even when they cover all or part of the harm for which the tortfeasor is liable.
Exception: when payment is made by the tortfeasor.
Examples: Insurance policies, employment benefits, gratuities
Defenses to Negligence and Other Liability
Affirmative Defense: Defense that can negate a claim in its entirety if supported by evidence. Affirmative defenses admit the plaintiff’s allegations but try to avoid liability by introducing additional facts that excuse the unlawful conduct.
Contributory Negligence: Plaintiff fails to a meeting the relevant (standard) degree of care for his own safety. It is not a reasonable person’s standard of care because it could be the standard of care for a physically disabled person, professional, or child. Historically, this was a complete or actual bar to the plaintiff’s recovery.
A person jaywalking is hit by a drunk driver. The jaywalker cannot recover because they were negligent as well.
Last clear chance doctrine: This was a response to the complete bar rule. Who had the last fair chance to avoid injury? If it was the defendant, then the plaintiff, even though contributory negligent, can still recover. If it was the plaintiff, then they cannot recover.
Assumption of Risk: The plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s acts. The assumption may be expressed or implied.
Expressed: through words. The victim agreed to expose himself to the possibility of harm. “I’ll take my chances.” This is an absolute bar to recovery.
Implied: The defendant must prove that the plaintiff had (1) knowledge of the risk and (2) voluntarily encountered the risk.
A person stands on the sidelines of a major league baseball game. The person has knowledge of the risk of being hit by a ball and voluntarily stands there.
Comparative Fault: The plaintiff’s comparative fault reduces their recovery rather than being an absolute bar. The plaintiff’s damages are calculated and then reduced by the proportion which plaintiff’s fault bears to the total causation of plaintiff’s harm.
Pure: The plaintiff may recover a portion of his damages no matter how great his negligence is in comparison to that of defendant. Michigan is a Pure Comparative Fault jurisdiction.
Modified: The plaintiff’s recovery is reduced up to a threshold. If the plaintiff’s comparative fault exceeds 50% then he is barred from recovery.
Less than: The plaintiff can recover as long as his percentage of fault is less than the defendants (49% rule).
Not greater than: The plaintiff can recover as long as his contribution is not greater than the defendants (50%).
Limitations on Recovery:
Statutes of Limitations: Time limits imposed on when a plaintiff can bring a claim. Failure to file the lawsuit within the statutory timeframe may preclude the plaintiff from recovery.
The person does not have a claim until they are injured.
The statutes of limitations are a matter of law.
Tolling statute of limitations: The time clock does not start running in cases involving minors until they are an age of majority.
Discovery Rule: The statute of limitations begins to run when the plaintiff, through reasonable diligence, knowledge of the injury, (2) knowledge of the operative cause of the injury, and (3) knowledge of the causal relationship between the injury and the operative conduct.
A daughter wanted to file a cause of action against DES, but it took years between when she was first injured and when she confirmed the cause of her injuries was due to the DES medication.
Public policy concerns: for defendants not to have an unreasonable delay to defend their claim. It may not be fair for the statute of limitations to expire for someone who does not realize they’ve been injured at the time of the negligent action.
Statute of Repose: A statutory “hard stop” placed on statutes of limitations. Example, a personal injury claim must be brought within two years of what the incident occurred or when the injury accrued, but no more than 5 years after the act or omission.
Workers’ Compensation: Workers’ Compensation statutes provide an exclusive remedy (benefits) to those who are injured in the course of their employment.
The employer is immune from additional liability unless it was an intentional tort. The jury will need to decide if the defendant’s actions were an intentional tort. This is not appropriate to be decided as a matter of summary judgment.
A plaintiff can recover if they were forced to work from home during Covid and were assaulted by their boyfriend. The injury occurred during the course of their employment.
This occurs even for acts of nature.
Survival Action: A decedent’s cause of action will survive to permit recovery on all damages from the time of the injury until the time of death. This is an action on behalf of the estate. Any recovery can be claimed by collectors. Public policy is so the defendant does not benefit by virtue of someone’s death.
Wrongful Death: Claims derived from the wrong to the decedent. A personal representative (spouse, children, decedents, parents, brother/sisters, children of the decedent’s spouse, and devisees (person who the real estate is left to)) can bring a cause of action to recover for economic and noneconomic damages resulting from tortious conduct to the decedent.
Recovery can include:
Economic Damages: Car insurance, tuition, allowances, medical expenses.
Companionship:
Funeral Expenses
Services
Recovery cannot include mental anguish or grief.
Recovery is allowed only to the extent that the deceased could have recovered in the action if he had lived. Example: the decedent’s contributory negligence would reduce or bar a wrongful death recovery in comparative negligence states.
Vicarious Liability
Vicarious Liability: Experiencing liability through another person. The person is responsible for the acts of someone else based on their relationship with the tortfeasor. This does not mean that the person may not also be negligent for their own actions (i.e. negligently hiring the employee).
Dramshop Statutes impose vicarious liability on bartenders for injuries caused to others by an intoxicated person.
Doctrine of Respondeat Superior: An employer is vicariously liable for torts of an employee that occur within the scope of the employment. You are liable in the absence of fault. The policy is to expose the employers and promote recovery.
The plaintiff must provide that the person is an employee and that they were acting within the scope of their employment. The defendant will say the person was not an employee or not acting within the scope of their employment.
Scope of employment: Acts so closely connected and reasonably incidental to what the servant was employed to do—that they may be regarded as methods, however improper, to carry out the employer’s objectives.
Going and Coming Rule: An employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work. |
Exception: When an employee endangers others with a risk arising from or related to work. To determine if the dangers arise from work, a foreseeability test is applied.
The risk originated from work.
The results were not startling nor unusual.
Frolic: material deviation from the course of employment. If it is a clear deviation, then it will be a matter of law. If it is not a clear deviation, then it will be a matter for the jury.
Detour: slight deviation from the course of employment. Not substantial enough to consider the employee to not be acting within the course of employment.
To determine if an employee has embarked on a slight or substantial deviation:
The employee’s intent.
The nature, time, and place of the deviation.
The time consumed in the deviation.
The work for which the employee was hired.
The incident actions reasonably expected by the employer; and
The freedom allowed the employee to perform his job responsibilities.
Intentional torts are usually not within the scope of employment.
Independent Contractor: In general, the principal will not be vicariously liable for the tortious acts of the independent contractor if the principal did not participate in them. The plaintiff will argue that the defendant has control over the independent contractor. Policy: encourages employers to hire competent contractors; promotes recovery.
Possible determinations whether the contractee maintains the right to control:
The extent of the control exercised over the details of the work.
Whether or not the one employed is engaged in a distinct occupation or business.
The skill required for the particular occupation.
Whether the employer supplies the instrumentalities, tools, and the place of work.
The length of time the person is employed.
The method of payment, whether by the time or by the job.
Whether or not the work is part of the regular business of the employer.
Whether or not the parties believe they are creating the employer-employee relationship.
Majestic Exception:
When the employer retains control of the manner and means of doing the work which is subject to the contract.
where the employer engages an incompetent contractor; or
where the activity contracted is inherently dangerous.
Tort Immunities
Sovereign (Governmental) Immunity: Historically, governmental units were not subject to tort actions unless they consented to the suit. This was because in England, the King did not permit suits against himself. There was a divine right that the King could do no harm.
Federal and State Immunity was implemented because of the Sovereign Immunity in England. In 1887, Congress authorized the courts to allow certain contract suits against the government. In 1946, Federal Torts Claim Act was created which provided general consent for suits against the United States federal government.
Federal Torts Claim Act: The federal government can be sued for any claim which can be brought against a person. The lawsuit is against the government despite the employee committing tortious conduct.
Municipalities (and other state governmental entities) are typically immune from liability for punitive damages.
Absolute Immunity: Judicial, executive, or legislative immunities unless they violate the U.S. Constitution or a Federal Statute.
Qualified Immunity: There are qualifications in place when it comes to immunity. The Court must determine if:
(1) the government employee or agency had discretion, and
An action is outside the scope of discretion function if a federal statute, regulation, or policy which specifically prescribes a course of action for an official to follow, because the official has no rightful option but to adhere to the directive.
(2) whether the official’s discretion was based on considerations of public policy.
An inquiry must center not on the agent’s subjective intent in exercising the discretion… but on the nature of the actions taken on whether they are susceptible to policy analysis.
Public No Duty Rule: There is generally no duty on the part of a city for failure to provide policy protection where the original duty was owed only to the public and not any particular person. A plaintiff cannot sue for negligence because no duty was owed in the first place.
Charitable Immunity: This has been abolished in most states. The public policy was to limit liability so then donors would continue to fund the charitable organizations. It was thought the donations would “dry up” if donated money went to tortious conduct.
Intra-Family Immunity: Under a traditional view, one member of a family unit (spouse, parent, or unemancipated child) could not sue another in tort for personal injury.
Spousal Immunity: Most states have abolished spousal immunity. Either spouse may maintain a tort action against the other.
Parent-Child Immunity: Most states have abolished parent-child immunity for non-intentional torts. This does not apply to intentional torts.
Strict Liability
Strict Liability: Liability in the absence of fault. This includes vicarious liability, workers’ compensation, animals with dangerous tendencies, and inherently dangerous activities.
Animals: An owner becomes liable, regardless of fault, for injuries caused by the animal which stems from a viscous propensity known by the owner. The viscous propensity is known if (1) the owner knew or should have known of the animal’s dangerous tendency, and (2) that dangerous tendency is what caused the injury to the claimant. Dog bite statutes provide strict liability…with a provocation exception.
Dangerous Activities: A defendant is strictly liable when the harm which resulted is what makes the activity abnormally dangerous.
To determine if an activity is abnormally dangerous:
The existence of a high degree of harm.
The likelihood that the harm that results from it will be great.
The inability to eliminate the risk by the exercise of reasonable care.
Is the location an appropriate place for the activity to occur.
Is the value of the activity outweighed by its dangerousness?
Limitations to Strict Liability:
In a comparative fault jurisdiction, the jury can assign fault to a plaintiff who unreasonably confronts an abnormally dangerous circumstance (animal or activity) with the prospect of recovery being denied or reduced.
Many abnormally dangerous cases involve explosives or firearms. Many courts have limited liability to the direct harm caused by rocks or debris.
Multiple Tortfeasors
Several Liability: If the actions are independent, the plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant (the plaintiff can provide which defendant caused which injury) then each defendant will only be liable for the identifiable portion.
Joint Liability: When two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for that injury. Each defendant is liable to the plaintiff for the entire damage that occurred. Example: plaintiff is awarded $100K in a verdict and there are two defendants. Each defendant is responsible for $100K but the plaintiff can only recover one total sum.
Circumstances where joint liability is appropriate:
Where the defendants have acted individually yet caused indivisible harm.
Where the defendants owe a common duty to the plaintiff. (Employer is vicariously liable while the employee is liable for the tortious conduct. Or when two store owners have the duty to provide a safe environment).
Punitive awards are often unique to the individual defendant.
Recovery Options:
A plaintiff can recover the award from one defendant (i.e. the defendant with more money) and then that defendant can sue the other tortfeasor for their contribution.
The plaintiff could recover from each defendant based on their proportion liability.
Policy: To promote recovery and further deter tortious conduct.
Contribution: A jury can determine the percentage of fault attributable to each of the defendants and the contribution will be ordered accordingly.
A defendant who pays more than his percentage to the plaintiff can recover the excess in a claim against the other tortfeasors.
Exception: if the contribution tortfeasor has a defense that would bar liability (spousal immunity) then he is not liable for contribution. If the jury allocates fault to an immune party, the court can choose to: (1) Apportion the immune party’s fault among the plaintiffs and defendants, (2) Apportion the immune party’s fault among the defendants only; or (3) Apportion the fault among the plaintiffs only.
Yellow Cab Co. v. Dreslin: Dreslin’s wife and others were injured in an automobile accident between Cab Co. and Dreslin. Yellow Cab sued the husband because Ms. Dreslin did not sue him in the first complaint even though he was contributory negligent. Spousal immunity. Yellow Cab tried to settle the lawsuit. Ms. Dreslin declines. And then Yellow Cab said they want to add her husband as a third-party tortfeasor. Ms. Dreslin says she wants to move to dismiss Yellow Cab's complaint because of spousal immunity because Yellow Cab was seeking recovery for damages that Mr. Dreslin could not be held liable for. Had Mr. Dreslin not joined the suit as a plaintiff, the Federal Rules of Civil Procedure would have allowed Yellow Cab to bring him in as a third party for the contribution purposes. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonmoving party who is or may be liable to it for all or part of the claim against it.
Indemnity: Involves shifting the entire loss between or among tortfeasors instead of apportioning it as in contribution. This could occur in cases involving vicarious liability where the liability is solely predicated on the wrongdoing of another. The employer could seek to have the employee pay the entire obligation because they were the one technically at fault.
Settlements: Reflect a compromise, the plaintiffs receive something from the tortfeasors and the defendant is released from liability.
Historically (common law), a judge viewed the release of a single tortfeasor as a release of all others who were potentially liable because the plaintiff should only be “satisfied” once. The policy behind this was that multiple “satisfactions” would over-compensate the plaintiff and be a waste on societal and judicial resources. This is no longer in effect.
Currently, a plaintiff can settle with one tortfeasor and still seek recovery from other tortfeasors.
Settlements are often confidential which encourages defendants to seek third party claims when appropriate.
Consequences of Settlements on Remaining Liability: There are two approaches to address the remaining liability issues. Most of the courts embrace the pro rata rule.
Pro Rata: The consequence of settling is determined per something, either per party or per fault allocation. The percentage of the defendant’s fault is satisfied by the settlement.
Fault could be divided per party (each defendant is 50% liable for the award).
Fault could be divided based on a party’s fault.
The plaintiff eats the bad and the good. This discourages sweetheart deals where the plaintiff will accept an unreasonable settlement from one defendant placing a disproportionate fault allocation on another defendant.
Example:
There is a $5M judgment and D1 settled for $1M.
Plaintiff is 20% liable,
D1 is 30% liable, and
D2 is 50% liable.
The plaintiff settled 30% of the liability for $1M.
The plaintiff can recover $2.5M (50% of $5M) from D2.
The plaintiff’s total recovery is $3.5M which is $0.5M less than what the plaintiff would have received without settling.
Example:
There is a $5M judgement and D1 settled for $3M.
Plaintiff is 20% liable,
D1 is 30% liable, and
D2 is 50% liable.
The plaintiff settled 30% of the liability for $1M.
The plaintiff can recover $2.5M (50% of $5M) from D2.
The plaintiff’s total recovery is $5.5M, which is more than the jury’s award.
Pro Tanto: The settlement reduces any remaining claims against non-settling parties by the settlement amount, with the non-settling parties required to make up the difference regardless of their allocated fault. The non-settling parties could end up paying more than their “fair share.” The jurisdictions who follow this rule allow for contribution from the settling party.
Example:
There is a $5M judgment and D1 settled for $1M.
Plaintiff is 20% liable,
D1 is 30% liable, and
D2 is 50% liable.
The plaintiff can recover $4M based on the 20% reduction (from $5M) for their contribution.
This leaves D2 responsible for the remaining $3M.
Products Liability
The liability of a supplier of a product to one injured by the product. The nature of the accident sets up the claim. Most jurisdictions are negligence jurisdictions and not strict liability jurisdictions.
Policy reasons for strict product liability: The injured party may find it difficult to prove negligence. When products are available for purchase, the manufacturers make certain representations related to the safety of the products. Non-manufacturer distributors can put pressure on the manufacturers to make safe products or request indemnity. It promotes manufacturers to make safe products.
Special Liability of Seller of Product for Physical Harm to User or Consumer – Restatement of Torts § 402A.
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 harm thereby caused to the ultimate user or consumer, or to his property if,
The seller is engaged in the business of selling such a product, and
It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
The rule in subsection (1) applies although
The seller has exercised all possible care in the preparation and sale of his product, and
The user or consumer has not brought the product from or entered into any contractional relationship with the seller.
Defect:
Manufacturing: A product can be “unreasonably dangerous” when it is manufactured different from other products, and it is more dangerous than if it would have been made the right way.
Design: When all the products of a line are made identically according to the manufacturing specifications but have dangerous propensities because of their mechanical features or packaging, the entire line may be found defective because of poor design.
Warning/instruction: Information Defects.
Limitations of Liability: Liability is imposed on everyone in the chain of distribution. Manufacturers sometimes have strict liability. The other areas of the chain will have negligent liability. Used dealers are not strictly liable for selling something. They could be negligent, but not strictly liable.
Learned Intermediary Doctrine: When a manufacturer cannot, or it is impractical, to warn a customer directly. This is common in drug manufacturers. The defendant must at least sufficiently advise the intermediary.
Manufacturing Defects: Liability is strict- not absolute. The plaintiff must prove §402A.
Manufacturing Defects: Flaws or imperfections in the products as a result of the limitations of the manufacturing process. Jurisdictions can hold manufacturers strictly liable or negligent perse.
Food Products: Do not fit into the typical manufacturing defects.
Foreign Natural: The jury is asked to determine whether the alleged defect in the food product was “foreign” or “natural” to the food product. Strict liability will follow only if the defect is unnatural to the product.
Consumer Expectation Test: Whether the community of consumers would find the food product more dangerous than what would ordinarily be associated with the consumption of the product. This is the preferred test.
Manufacturers worry about warning claims because the matter will go to the jury.
Design Defects (Wade 7 Factors):
The usefulness and desirability of the product-its utility to the user and to the public as a whole.
The safety aspects of the product-like the likelihood that it will cause injury, and the probable seriousness of the injury.
The availability of a substitute product which would meet the same need and not be as unsafe.
The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
The user’s ability to avoid danger by the exercise of care in the use of the product.
The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings, or instruction.
The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
When you identify a problem:
design out the problem.
protect from locating the problems somewhere that someone would come in contact with
Place a warning.
Categories of Design Defect Claims (page 618):
Risk Utility Negligence: Looks at the nature of the product when it was sold (not when the claim was brought). Applies Wade’s 7 Factor test. It looks at the factors known to the manufacturer at the time the product was produced.
Risk Utility at time of trial: The facts balanced or considered are those known at the time of trial as opposed to those known at the time the product weas produced. This test allows facts which the manufacture may not have known to exist at the time of design. It is the purest form of strict liability.
Consumer Expectation Test: This is appealing in jurisdictions which draw a line between negligence and strict liability.
Combination of risks utility and consumer expectations test: rooted from the §402A suggestion that strict liability was limited to products sold in a defective condition unreasonably dangerous to the user or consumer.”
Most jurisdictions require the plaintiff to offer an alternative design by which the subject product can be compared to before liability will be had against the defendant in a design case.
Strict liability should not be imposed on prescription drugs. This is so that drug companies will not be deterred from research and producing new drugs which could help people.
Warnings: A warnings claim is brought when (1) someone believes they were injured because they were insufficiently warned or insufficiently instructed, and (2) the lack of adequate warnings/instructions is what caused the injury.
Foreseeability: Manufacturers must warn about things they know about or should have known about.
Negligence: Reasonableness based analysis. Reasonableness based on circumstances: cost of new warning, clutter issues, nature of risks.
Cannot have overcluttered labels.
Prior accidents are often an evidentiary issue when it comes to product liability or warning claims. There are also questions when it comes to malice.
Rebuttable Presumption: The courts presume if there was an adequate warning or instruction it would be heeded. The defendant can argue that the warning would not have made a difference because the plaintiff would not have followed the warning anyway.
What makes a warning adequate:
Process: how was the risk conveyed (warning placement, lettering, is it attention grabbing)
Substance: was the risk identified; instructions on how to avoid; instructions on what to do if the risk is encountered.
Liability for Warnings: For liability to follow the plaintiff must prove that the (1) warning defect caused the plaintiff’s injury and (2) a plaintiff who confronts an obvious risk is unlikely to be deterred by a warning.
Federal Rule of Evidence 407: For the court to allow subsequent remedial measures to be admitted, the court must consider (a) why the plaintiff would want to admit evidence of a changed design; (b) what policies are furthered by §407a, and (c) ways to get around §407a.
Preemption: Federal law trumps when there is a conflict between federal and state laws. The Supremacy Clause of the US Constitution allows for a federal law to trump or supersede state law. This can be expressed or implied.
A product’s compliance with applicable government safety standards (including labeling requirements) is evidence-but not conclusive-that the product is not effective.
Federal labeling requirements do not preempt state product liability law on defective warnings.
Defenses to Product Liability:
Contributory Negligence States: Not a defense in a strict liability action where the plaintiff merely failed to discover the defect or guard against its existence, or when the plaintiff’s misuse was reasonably foreseeable. Voluntarily and unreasonably encountering a known risk (i.e. assumption of risk) are defenses.
Comparative Negligence States: The states would apply their comparative negligence rules to strict products liability.
Disclaimers of liability are irrelevant in negligence or strict liability cases if personal injury or property damage has occurred.
Misuse: Defendant is not liable for an injury caused by an unforeseeable misuse of his product. Manufacturers must anticipate reasonably foreseeable uses even if they are “misuses” of the product.
Human Factor Experts: people familiar with how users use products and how manufacturers should warn. The product should be designed with anticipation of how the user will use it compared to how the manufacturer intends for it to be used.
Defamation
Common Law Defamation: The plaintiff has the burden to prove the elements.
Material conveyed must be defamatory.
Material must be published by the defendant.
Material must “concern” the plaintiff.
Pecuniary Loss
Common Law Defamation:
Defamatory: injuries the plaintiff’s reputation by subjecting her to scorn, ridicule, disassociation or lowers her standard within the community. Tangibly nasty. A community of reasonable people determines if the publication is defamatory.
Of and concerning: reasonably understood that the statement concerns the plaintiff. There are times it is unclear that the statement concerns the plaintiff. The court will allow devices (colloquium, inducement, or innuendo).
Example: PD dabbles in the snow
Colloquium: extrinsic evidence to show PD is Professor Dotson. May need students to testify.
Inducement: snow - is cocaine.
Innuendo: involved in cocaine activity.
Conveyed: the statement was made to at least one person.
Publication: term of art. A statement was communicated in a clear fashion to a third person. The people who see and hear the statement need t be capable to understand it.
Pecuniary Damages: Loss of ability to work. Loss of income. Loss of business. This is not a harm to one’s reputation. Must show the loss that occurred because of the damage to your reputation.
Libel: Defamation by sight. Damages are presumed by law.
Libel per se: Matter of law. The courts take the position that injury to the reputation of the plaintiff is presumed by law only if the statement is libelous and defamatory on its face.
Libel per quod: Matter of fact. The courts take the position that the statement is not defamatory on its face and requires extrinsic facts to establish its defamatory content.
Slander: Defamation by sound. Damage is not presumed.
Slander per se: An injury to reputation is presumed without proof of special damanges. The statement is slander per se if it alleges:
a defamatory remark imputed a serious criminal offense;
a venereal or loathsome and communicable disease;
improper conduct of a lawful business;
or unchastity by a woman.
Group Defamation: Would a reasonable person construe the statement as speaking of any particular person? We do not have group defamation lawsuits, there are individuals who bring a claim indicating the group defamation refers to them.
Size of the group
Intensity of suspicion cast upon the group. (Example- all police officers are racist. How likely is an individual to hear the statement and think it is true).
Communications Decency Act: Act by congress to provide immunity to service providers from defamation liability. If the internet provider did not originate the content- they cannot be held liable for what is published on their platforms.
NY Times v. Sullivan: Refers to the published element for public officials. The plaintiff must prove actual malice to recover for defamatory statements involving a public official. Public policy is to encourage free speech and because public officials have better access to outlets to correct the statement.
Actual Malice: with knowledge that it is false or with reckless disregard whether it was false or not.
Reckless conduct is not measured by whether a reasonable person would have investigated before publishing; rather, there must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication.
Private Individuals: Courts can decide whether to impose strict liability (liability for malice) or negligence.
Public policy to protect reputations: impose negligence liability. Was the defendant reasonable.
Public policy to protect speech: impose malice (strict liability).
Defenses to Defamation
Consent is a complete defense.
Truth (Affirmative Defense): A plaintiff cannot premise a lawsuit which is true. The defendant has to show that the statement is substantially true—not completely true.
Absolute Privilege: The speaker is not liable for defamatory statements. The privilege is not affected by malice, abuse, excessive provocation.
Judicial proceedings (judge, jurors, counsel, witnesses): all aspects of the proceedings including statements made in open court, pretrials, deposition, or in any other pleadings or papers. The statement must bear some reasonable relationship to the proceedings.
Legislative proceedings: remarks made by federal or state legislators in their official capacity during legislative proceedings. There is no requirement of a reasonable relationship to any matter.
Executive proceedings: governmental executive official has absolute privilege to any statement made while exercising functions of office. The statement must have some reasonable relationship to the executive matter.
Compelled (broadcast or publication) for public notices. Example: Radio station gave time to one candidate for public office and hence came under obligation to extend similar treatment to other candidates for the same office. Station had no right to censor these later speeches. Thus, no liability attaches for defamation they might contain.
Qualified Privilege: A speaker may say something without being liable because of the existence of a qualified privilege.
Reports of public proceedings or meetings. The privilege excuses accurate reports of statements that were false when made, but it does not excuse inaccuracies in the reporting of statements.
Reports of public interest.
Qualified privilege is lost if the plaintiff proves actual malice.
Invasion of Right to Privacy
The right to protection against unreasonable interferences with an individual’s solitude.
Dignitary (Privacy) Claims: Only harm is to the emotions.
Public dissemination of public facts
Intrusion into seclusion
False light
Appropriation of one's likeness.
Public Disclosure of Private Facts: Widespread dissemination of information that would normally be confidential done in a way thay is highly offensive to a reasonable person.
Public Disclosure
Of a Private Fact
Which would be offense and objectionable to a reasonable person,
Which is not of legitimate public concern. (The facts are true. The problem is that they should have remained private- In the eyes of the plaintiff.
Next-door neighbor suffers from a rare disease—you cannot disseminate it on a radio station.
Intrusion into Seclusion: intentional intrusion, physically or otherwise, upon solitude or seclusion of another person’s private affairs.
Defendant must have intruded into the plaintiff’s private space
Where the plaintiff had an expectation of privacy
Manner of intrusion was highly offensive.
Celebration does not have expectation of privacy on public streets.
False Light: Widespread dissemination of information about someone that is inaccurate and done in a way which is highly offensive to the reasonable person.
The light you must have been cast in must have been highly offensive to a reasonable person.
Publication must have been with malice 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.
The matter must have been widely disseminated.
Unusually flattering story about someone.
Appropriation of One’s Likeness: The defendant used the plaintiff’s name, picture, or likeness for commercial advantage, without permission.
Used name or likeliness
To advantage himself
The harm does not have to be pecuniary in nature. It can result from the fact that you are offended by someone using your name or likeness (emotional)
Can be an advertisement or promotional labeling. Cannot be a newsworthy use.