Torts.

Seite 1

I.

INTENTIONAL TORTS.

A.

PRIMA

FACIE CASE. To establish a prima facie

case of intentional tort, plaintiff must prove: (1) act by defendant; (2)

intent; and (3) causation.

1. Act By Defendant. The act required is a volitional act by the defendant.

2. Intent. Intent may be either: (1) specific intent [ the purpose in acting is to bring about

specific consequences]; or (2) general intent [the actor knows with “substantial certainty” that the consequences will

result]. The actor does not need to intend that injury that results from

bringing about these consequences. Thus,

e.g. if D intentionally pushes P, who falls down and breaks her arm, D is

liable for her injury even though he did not intend her to break her arm,

because he intended to cause the contact that resulted in her injury.

Ø Transferred intent.

1.

General Rule of

Transferred Intent. The transferred

intent doctrine applies when the defendant intends to commit a tort against one

person but instead (i) commits a

different tort against that person, (ii) commits the same tort as intended but

against a different person, or (iii) commits a different tort against a

different person. in such cases, the

intent to commit a certain tort against one person is transferred to the tort

actually committed or to the person actually injured for purposes of

establishing a prima facie case. Thus,

e.g. if a defendant who acts with the intent to commit an assault but whose

conduct actually constitutes a battery is liable for battery.

2.

Limitations

on the Use of Transferred Intent.

Transferred intent may be invoked only if both the tort intended and the

tort that results are one of the following:

i. Assault;

ii. Battery;

iii. False Imprisonment;

iv. Trespass to Land; or

v. Trespass to Chattels.

· Exam tip:

· Everyone is

“capable” of intent. Incapacity is not

a good defense. Thus, young children

and persons who are mentally competent will be liable for their intentional

torts.

3. Causation. The result must have been legally caused by the defendant’s act or

something set in motion by him.

Causation is satisfied if the defendant’s conduct was a substantial

factor in bringing about the injury.

B.

PRIMA

FACIE CASE—INTENTIONAL TORTS TO THE PERSON.

1. Battery. Elements of the prima facie case are: (i)

harmful or offensive contact; (ii) to plaintiff’s person; (iii) intent; and

(iv) causation.

Ø Harmful or offensive

contact. Contact is harmful if it causes

actual injury, pain, or disfigurement.

Contact is offensive if it would be considered offensive to a reasonable

person.

1.

Direct

or Indirect. Contact can be direct (e.g.

striking plaintiff) or indirect (e.g. setting a trap for plaintiff to fall

into).

Exam tip:

Contact is considered offensive only if it has not been

consented to. However, consent will be

implied for the ordinary contacts of every day (i.e. bumping on a crowded

bus).

Ø To plaintiff’s

person. plaintiff’s person includes

anything connected to the plaintiff [e.g. clothing or a purse].

Ø Damages Not

Required. Plaintiff can recover nominal

damages even if actual damages are not proven.

Plaintiff may recover punitive damages for malicious conduct.

2. Assault. Elements of a

prima facie case are: (i) an act by the defendant creating a reasonable

apprehension in plaintiff; (ii) of immediate harmful or offensive contact to

plaintiff’s person; (iii) intent; and (iv) causation.

Ø Distinguishing

Fear. Apprehension should not be

confused with dear or intimidation (e.g. weakling can cause apprehension and

thus a bully). Apprehension is judged by

a reasonable person test.

Ø Knowledge of act. For apprehension to be shown, plaintiff must

have been aware of the threat from the defendant’s act, although plaintiff need

not be aware of the defendant’s identity.

Ø Apparent ability

sufficient. If the defendant has the

apparent ability to commit a batter, this will be enough to cause a reasonable

apprehension.

Ø Effect of words. Words alone are not sufficient. For the defendant to be liable, the words

must be coupled with conduct. However,

words can negate reasonable apprehension (e.g. the defendant shakes her fist

but states that she is not going to strike the plaintiff).

Ø Requirement of

immediacy. Plaintiff must be

apprehensive that she is about to become the victim of an immediate

battery.

Ø Damages not

required. Plaintiff can recover nominal

damages even if actual damages not proved.

Malicious conduct may permit recovery of punitive damages.

3. False Imprisonment. Elements

of a prima facie case: (i) an act or

omission on the part of the defendant that confines or restrains plaintiff;

(ii) to a bounded area; (iii) intent; and (iv) causation.

Ø Sufficient methods of

confinement or restraint. Sufficient acts of restraint include: (i) physical barriers; (ii) physical force;

(iii) threats of force; (iv) failure to release; and (v) invalid use of legal

authority.

Ø Insufficient methods

of confinement or restraint. Insufficient acts of restraint include: (i)

moral pressure and (ii) future threats.

Ø Time of

confinement. It is relevant how short

the period of confinement is.

Ø Awareness of

confinement. Plaintiff must know of the

confinement or be harmed by it.

Ø What is a Bounded

Area? For an area to be “bounded”

freedom of movement must be limited in all directions. There must be no reasonable means of escape

known to plaintiff.

Ø Damages Not

Required. Plaintiff can recover nominal

damages even if actual damages are not proved.

Punitive damages may be recovered if the defendant acted maliciously.

4. Intentional Infliction

of Emotional Distress. Elements of the

prima facie case: (i) an act by the defendant amounting to extreme and

outrageous conduct; (ii) intent or recklessness; (iii) causation; and (iv)

damages—severe emotional distress.

Ø Extreme and Outrageous

Conduct. This is conduct that transcends

all bounds of decency. Conduct that is

not normally outrageous may become so if:

1.

It

is continuous in nature;

2.

It

is directed toward a certain type of plaintiff (children, elderly persons,

pregnant women, supersensitive adults if the sensitivies are known to the

defendant; or

3.

It

is committed by a certain type of defendant (common carriers or innkeepers may

be liable even for mere “gross insults”).

Ø Requisite Intent. Unlike other intentional torts, recklessness

as to the effect of defendant’s conduct will satisfy the intent requirement.

Ø Damages. Actual damages (severe emotional distress),

not nominal damages, are required.

Proof of physical injury is not required. The more outrageous the conduct, the less

proof of damages is required.

Exam Tip:

Intentional infliction of emotional distress is the only

intentional tort to the person that requires damages.

Ø Causation in Bystander

Cases. When the defendant intentionally

causes physical harm to a third person and the plaintiff suffers severe

emotional distress because of it, the plaintiff may recover by showing either,

prima facie case elements of emotional distress or that (i) she was present

when the injury occurred, (ii) she is a close relative of the injured person,

and (iii) the defendant knew facts (i) and (ii).

Exam tip:

Intentional infliction of emotional distress is a

fallback tort position. Thus, if

another alternative in your exam question is a tort that will also allow

plaintiff to recover then it should be chosen over this alternative.

C.

PRIMA

FACIE CASE—INTENTIONAL TORTS TO PROPERTY.

1. Trespass to Land. elements

of the prima facie case: (i) physical invasion of the plaintiff’s real

property; (ii) intent; and (iii)

causation.

Ø Physical

invasion. The invasion may be by a

person or object (e.g throwing a baseball onto plaintiffs land is a

trespass). If intangiable matter (e.g.

vibrations or odor) enters, the plaintiff may have a case for nuisance.

Ø Real Property. Real property includes not only the surface,

but also airspace and subterranean space for a reasonable distance.

Ø Intent. Defendant need intend only to enter onto that

particular piece of land (he need not know that the land belonged to

another).

Ø Poetential

plaintiffs. Anyone in actual or

constructive possession of the land may maintain this action.

Ø No requirement of

damages. Plaintiff can recover without

showing actual injury to the land.

2. Tresspass to Chattel. The

elements of a prima facie case: (i) act

by defendant that interferes with the plaintiff’s right of possession in a

chattel; (ii) intent; (iii) causation; and (iv) damages.

Ø and (iv) damages.

1.

Two

types of interference. The interference

may be either intermeddling (i.e. directly damaging the chattel) or a

dispossession (i.e. depriving the plaintiff of his lawful right of possession

of the chattel).

i. Intent required. Intent to trespass is not required; intent to

do the act of interference is all that is needed. The defendant’s mistaken belief that he owns

the chattel is no defense.

ii. Damages. Actual damages—not necessarily to the

chattel, but at least to a possessory right—are required.

3. Conversion. Elements

of a prima facie case: (i) an act by the

defendant that interferes with the plaintiff’s right of possession in a

chattel; (ii) the interference is so serious that it warrants requiring the

defendant to pay the chattel’s full value; (iii) intent; and (iv)

causation.

Ø Acts of

conversion. Acts of conversion include

wrongful acquisition (theft), wrongful transfer, wrongful detention, and

substantially changing, severely damaging, or misusing the chattel.

Ø Intent required. As

with trespass to chattels, mistake as to ownership is no defense; the only

intent required is the intent to do the act that interferes with the

plaintiff’s right of possession.

Ø Seriousness of

interference. The longer the withholding period and the more extensive the use,

the more likely it is to be conversion.

A less serious interference is a trespass to chattel.

Ø Subject matter of

conversion. Only tangiable personal property and intangibles that have been

reduced to physical form (e.g. promissory note) are subject to conversion.

Ø Potentional

plaintiffs. Anyone with possession or the immediate right to possession of the

chattel may maintain an action for conversion.

Ø Remedies. Plaintiff may recover damages (fair market value at the time of conversion)

or possession (replevin)

TRESPASS TO CHATTEL VS. CONVERSION.

Trespass to Chattels

Conversion

ACT BY DEFENDANT

An interference with

plaintiff’s right of possession of chattel (either intermeddling or

dispossession).

An interference with

plaintiff’s right of possession so serious as to warrant that the defendant

pay the chattels full value.

INTENT

Intent to do the act

that brings about the interference.

Intent to do the act

that brings about the interference.

Recovery of actual

damages from harm to the chattel or loss of use (if dispossession, damages

based on rental value).

Damage award of fair

market value of chattel at the time of conversion(ie. Forced sale of

chattel). May instead recover chattel

(Replevin).

REMEDY

D.

DEFENSES

TO INTENTIONAL TORTS. (1) consent; (2) self defense, defense of others, and

defense of property;

1. Consent. Plaintiffs consent to the defendants conduct

is a defense, but the majority view is that one cannot consent to a criminal

act. Any consent fact pattern raises 2

inquiries:

Ø Was there a valid

consent (eg. No fraud)?

Ø Did the defendant stay

within the boundaries of the consent (eg. Not use a gun in a boxing match)?

1.

Express (Actual)

Consent. Defendant is not liable if the

plaintiff experessly consents to the defendant’s conduct. Exceptions: (i) mistake will undo the express consent if the defendant knew of and

took advantage of the mistake; (ii) consent induced by fraud will be

inva;idated if it goes to an essential matter; and (iii) consent obtained by

duress will be ivalidated unless the duress is only threats of future action or

future economic deprivation.

2.

Implied

Consent. Apparent consent is that which

a reasonable person would infer from custom and usage or plaintiff’s conduct,

eg. Normal contacts inherent in body contact sports, ordinary incidental

contacts, etc. consent implied by law

arises when an action is necessary to save a persons life or some other

important interest in person or property.

3.

Capacity

Required. Individuals without capacity

are deemed incapable of consent, eg. Incompetents, drunken persons, and very

young children.

Exam tip:

This requirement of capacity differs from the rule for

intent element of intentional torts, where incapacity is no defense; i.e.

everyone (Even young child) has the capacity to commit a tort, but not

everyone has the capacity to consent to a tort.

4.

Exceeding

the Consent Given. If the defendant

exceeds the scope of consent and does something substantially different then he

may be liable.

2. Self-defense, Defense

of Others, and Defense of Property. When a question involves the defense of

self or others, or property, ask the following questions:

Ø Is the privilege

available? These privileges apply only for preventing the commission of a

tort. Already committed torts do not

qualify.

Ø Is mistake permissbale

as to whether the tort being defended against (battery, trespass, etc. ) is

actually being committed?

Ø Was the proper amount of force used?

§ Exam tip

§ Keep your parties

clear. In questions involving these

defenses, the conduct of defendant was

prompted by the commission or apparent commission of the tort by

plaintiff. That tort is not at issue,

however, the issue is whether the defendant’s response itself constited a

tort against the plaintiff (usually battery, trespass to land, or trespass to

chattels) or instead was privileged bt one of these defenses.

1.

Self

defense. if a person reasonably believes that she is beig or is about to be

attacked then she may use such force as is reasobly necessary to protect

against injury.

i. When is the defense

available?

1.

The

majority rule is that there is no duty to retreat. The modern trend imposes a duty to retreat

before using deadly force if this can be done safely, unless the actor is in

her home.

2.

Self

defense is not available to the initial aggressor unless the other party

responds to the aggressors nondeadly force by using deadly force.

3.

Self

defense may extend to third parties injuries (caused while the actor was

defending herself). An actor might be

liable to a third person if she deliberately injured him in trying to protect

herself.

ii. Is Mistake Allowed? A

reasonable mistake as to the existence of the danger is allowed.

iii. How Much Force May be

Used? One may use only that force that

reasonably appears to be necessary to prevent the harm (including deadly

force). If more force than is reasonably

necessary is used, the defense is lost.

Which of the

following applies to self-defense for an intentional tort?

Correct Answer:

One who is the

initial aggressor may be able to defend himself

Your

answer: You were incorrect

One must have an

actual necessity to defend oneself

Correct Answer

One who is the

initial aggressor may be able to defend himself

Explanation

One who is the

initial aggressor may be able to defend himself. Usually, the

initial aggressor may not defend himself against the other party’s reasonable

use of force in self-defense. However, if the other party uses deadly force

against an aggressor who had only used nondeadly force, then the aggressor

may defend himself against that deadly force.

It is incorrect

that one must have an actual necessity to defend oneself.

The actor need only have a reasonable belief as to the other party’s

actions: i.e., apparent necessity, not actual necessity, is

sufficient. Hence, one could make a reasonable mistake as to the existence of

the danger and still maintain the defense.

Also it is incorrect

that one must attempt to retreat first before using

self-defense. A substantial majority of the courts hold that one need not attempt

to escape, but may stand his ground and even use deadly force when necessary

to prevent death or serious bodily harm. Some courts impose a duty to retreat

before using deadly force when safe to do so, unless the actor is in his

home.

QUESTION ID: T0037B

2.

Defense

of others.

i. When is the Defense

Available? One may use force to defend another when the actor reasonably believes

that the other person could have used force to defend himself.

ii. Is Mistake

Allowed? A reasonable mistake as to

whether the other person is being attacked or has a right to defend himself is

permitted.

iii. How Much Force May Be

Used? The defender may use as much force

as he could have used in self-defense if he were the threatened with the

injury.

3.

Defense

of property.

i. When is the Defense

Available? One may use reasonable force

to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be

made unless it clearly would be futile or dangerous. The defense does not apply once the tort has

been committed; however, one may use the force in hot pursuit of antoehr who

has tortuously disossesd the owner of her chattes because the tort is viewed as

still being committed.

Exam tip!

Remember that this defense is not availanble against one

with a privilege. Whenever an actor has a privilege to enter

ontot he land of another because of necessity, recapture of chattels etc.,

that privilege will sueprcede the privilege of the land possessor to defend

her property.

ii. Is Mistake Allowed? A reaonsbale mistake is allowed as to whether

an intrusion has occurred or a request to desist is required. A mistake is not allowed as to wheter the

entrant has a privilege (e.g. necessity) that supercedes the defense of

property right, unless the entrant conducts the entry so as to lead the

defendant to reasonably believe that it is not privileged (such as by refusing

to say what the necessity is).

Correct Answer

Use force against

one with a privilege to enter the property

Explanation

A defendant cannot

assert the defense of property if she uses force against one with

a privilege to enter the property. Whenever an actor has a

privilege to enter upon the land of another because of necessity, right of

reentry, right to enter upon another’s land to recapture chattels, etc., that

privilege supersedes the privilege of the land possessor to defend her

property.

It is incorrect to

state that the defendant may not use force without a request to

desist. A request to desist must usually precede the use of force,

but if the circumstances make it clear that the request would be futile or

dangerous, then a request to desist is not required.

It is also incorrect

to state that the defendant may not make a mistake about the right

to use force. A reasonable mistake is allowed as to the property

owner’s right to use force in defense of property, where the mistake involves

whether an intrusion has occurred or whether a request to desist is required.

QUESTION ID: T0039B

iii. How Much Force May Be

Used? Reasonable force may be used. However, one may not use force causing death

or serious bodily harm unless the invasion of property also entails a serious

threat of bodily harm.

Ø Re-entry Onto Land. At common law, one could use force to reenter

land only when the other came into possession tortuously. Under modern law, there are summary

procedures for recovering possession of real property. Hence, resort to self-help is no longer

allowed.

Ø Recapture of Chattels.

The basic rule is the same as that for reentry of land at common law: when another’s possession began lawfully (eg.

Conditional sale), one may use only peaceable means to recover the chattel. Force may be used to recapture a chattel only

when in hot pursuit of one who has obtained possession wrongfully, eg. By

theft.

1.

When

is the Defense Available?

i. Timely Demand

Required. Timely demand to return the chattel is first required unless clearly

futile or dangerous.

ii. Recovery Only From

Wrongdoer. The recapture may be only

from a tortfeasor or some third person who knows or should know that the

chattels were tortuously obtained. One

may not use force to recapture chattels in the hands of an innocent party.

iii. Entry onto land to

Remove Chattel.

1.

On

Wrongdoer’s Land. when chattels are located on the land of the wrongdoer, the

owner is privileged to enter onto the land and reclaim them at reasonable time

and in a reasonable manner, after first making a demand for the return.

2.

On

Land of Innocent Party. Similarily, when

the chattels are on the land of an innocent party, the owner may enter and

reclaim her chattel at a reasonable time and in a peaceful manner when the

landowner has been given notice of the presence of the chattel and refuses to

return it. (as noted above, the chattel

owner’s right to recapture superscedes the landowner’s right to defend his

property). However, the chattel woner will

be liable for any actual damage caused by the entry.

3.

On

Land Through Owner’s Fault. If the

chattel are on the land of antoehr through the owner’s fault (e.g. negligently

letting cattle wander), there is no privilege to enter onto the land. they may be recovered only through the legal

process.

2.

Is

Mistake Allowed? Generally, no mistake

regarding the defendant’s right ot recapture the chattels or enter onto the

land is allowed. However, shopkeepers

may have the privilege to detain for a reasonable period of time individuals

whom they reaonsbaly believe to be in ossession of shoplifeted goods.

3.

How

Much Force May Be Used? Reasonable

force, not including force sufficient to cuase death or serious bodily harm may

be used to recapture the chattels.

3. Privilege of

Arrest. Depending on the facts, the

actor may have the privilege to make an arrest of a third person.

Ø Invasion of land. The privilege of arrest carries with it the

privilege to enter anothers land for the purpose of effecting the arrest.

Ø Subsequent

Misconduct. Although the arrest itself

may be privileged, the actor may still be liable for subsequent misconduct (Eg.

Failing to bring the arrested party before the magistrate, unduly detaining the

party in jail).

Ø Mistake.

1.

Misdeamenor. If the arrest is for a misdeamenor, it is

privileged only if for a breach of the peace and if the action takes place in

front of the defendant. (Most states

statutes grant police officers a broader privilege).

2.

F7elony. For a felony arrest, a police officer may

make reasonable mistake. Citizens may

make reasonable mistake regarding the identity of the felon, but not regarding

whether the felony occurred.

ARRESTS

WITHOUT A WARRANT.

Felony arrest by

police officer.

Felony arrest by private citizen.

Misdeamenor arrest.

When Privilged.

The officer must reasonably believe that a

felony has been committed and that the person he arrests has committed it.

The felony in fact must have been committed

and the citizen must reasonably believe that the person he arrests has

committed it.

The misdeamenor must be a breach of the

peace and committed in the arresting parties presence.

Force Allowed.

That degree of force reasonably necessary to

make the arrest; deadly force only when the suspect poses a threat of serious

harm.

That degree of force that is reasonably

necessary to make the arrest; deadly force only when the suspect poses a

threat of serious harm.

That degree of force reasonably necessary to

make the arrest, but never deadly force.

Which of the

following types of arrests without a warrant may constitute an invalid use of

legal authority for false imprisonment purposes?

Correct Answer:

A felony arrest by a

private citizen if she has reasonable grounds for believing that a felony has

been committed

Your

answer: You were incorrect

A felony arrest by a

police officer if she has reasonable grounds for believing that the person

arrested has committed a felony

orrect Answer

A felony arrest by a

private citizen if she has reasonable grounds for believing that a felony has

been committed

Explanation

A felony arrest by a

private citizen with reasonable grounds to believe that a felony has been

committed may

constitute an invalid use of legal authority for false imprisonment purposes.

A felony must in fact have been committed for the arrest to be valid; if the

private citizen was mistaken in her belief, even though reasonable, she may

be liable for false imprisonment.

When an arrest by a

police officer or private citizen for a criminal offense is made without a

warrant, it may constitute a false imprisonment unless it is privileged.

Slightly different rules apply to police officers than to private citizens in

this situation. In contrast to the rule for private citizens, a

felony arrest by a police officer is valid if the officer has reasonable

grounds to believe that the person arrested has committed a felony,

even if a felony in fact has not been committed or the person arrested did

not commit it.

Another arrest that

is privileged is a felony arrest by a private citizen if she has

reasonable grounds for believing that the person arrested has committed the

felony that took place, even if it turns out that the person arrested

did not in fact commit the felony that took place.

A misdemeanor arrest

by a private citizen for a breach of the peace committed in her presence is also

privileged. Both police officers and private citizens are privileged for

misdemeanor arrests without a warrant if the misdemeanor was a breach of the

peace and was committed in the presence of the arresting party.

QUESTION ID: T0023A

3.

Shoplifting

detentions. A shopkeeper has a privilege

to detain a suspected shoplifter for investigation. For the privilege to apply, the following

conditions must be satisfied: (1) there must be a reasonable belief as to the

fact of the theft; (2) the detention must be conducted in a reasonable manner,

and only non deadly force can be used; and (3) the detention must only be for a

reasonable period of time and only for the purpose of making an

investigation.

4. Necessity. A person may interfere with the real or

personal property of another when it is reasonably and apparently necessary to

avoid threatened injury from a natural or other force and when the threatened

injury is a substantially more serious than the invasion that is undertaken to

avert it. There are two types of

necessity: (1) public—when the act is

for the public good; and (2) private—when the act is solely to benefit a

limited number of people. Under private

necessity, the actor must pay for any injury that he causes (unless the act was

to benefit the property owner).

Exam Tip.

Necessity is a defense only to property torts.

5. Discipline. A parent or teacher may use reasonable force

in disciplining children.

II.

HARM TO ECONOMIC AND

DIGNITARY INTERSTS.

A.

DEFAMATION. The law of defamation is divided into two

parts: the common law elements and the constitutional requirements.

1. The common law

elements of defamation are:

Ø Defamatory language;

Ø “of or concerning “

the plaintiff;

Ø publication thereof by

defendant to a third person; and

Ø damage to the

plaintiff’s reputation.

2. if the defamation is a

matter of public concern, the Constittutional requires the plaintiff to prove

two additional elements:

Ø falsity of the

defamatory language; and

Ø fault on part of the

Exam Tip:

In a common law case, plaintiff does not have to prove

falsity as part of the prima facie case, rather defendant can offer the truth

of the statement as a defense.

3. Defamatory Language.

Ø Defamatory language is

defined as language tending to adversely affect one’s reputation. A statement

of opinion is actionable only if appears to be based on specific facts and

express allegation of those facts would be defamatory. Name calling is insufficient.

1.

Inducements and

Inneuendo. If the statement is not defamatory on its

face, plaintiff may plead additional facts as “inducement” to establish the

defamatory meaning by “innuendo.”

2.

Living Person

Requirement. Any living person may be defamed. Defamation of a deceased person is not

actionable. In a limited sense, a

corporation, unincorporated association, or partnership may be defamed (e.g. by

remarks as to its financial condition, honesty, integrity, etc.)

4. “Of or Concerning” Plaintiff. The plaintiff must establish that a

reasonable reader, listener, or viewer would understand that the defamatory

statement referred to the plaintiff.

Ø Colloquium. If

the statement does not refer to the plaintiff on its face, then extrinsic

evidence may be offered to establish that the statement refers to the

plaintiff. This is referred to as

pleading “colloquim.”

Ø Group Defamation.

1.

Small Group. If the defamatory

statement refers to all members of a small group then each member may

establish that the statement is “of and concerning” him by alleging that he is

a group member. (i.e. everyone wins!).

2.

Large Group. If it is a large group then no member

can prove that the statement is “of or concerning him” (i.e. no one wins!).

3.

Some Members of a Small Group. If the statement only refers to some

members of a small group then plaintiff can recover if a reasonable person

would view the statement as referring to plaintiff.

5. Publication. Publication means communication of the

defamation to a third person who understands it. Such publication can be made either

intentionally or negligently. If the

intent is to publish not the intent to defame then that is requisite intent. Each repetition is a separate

publication. However, for magazines,

newspapers, etc. most states have adopted a “single publication” rule under

which all copies are treated as one publication.

o EXAM TIP!

o An exam favorite is

the situation where a defamatory statement about the plaintiff is made only

to plaintiff. As a general rule, there

is no publication and thus no defamation.

Ø Who May be Liable?

1.

Primary publishers (e.g. news papers, TV

stations etc.) are liable to the same extent as the author or speaker.

2.

One who repeats

defamation

is liable on the same general basis as the primary publisher (even if she

states the source or makes clear that she does not believe the

defamation).

3.

One selling papers or

playing tapes

is a secondary publisher and is liable only if he knows or should know of the

defamatory content.

4.

An internet service

provider

is not treated as a publisher when a user of its service posts defamatory

content.

6. Damage to the Plaintiff’s Reputation. the type of damages

plaintiff must prove depend on the type of defamation (libel or slander)

involved. In some slander cases,

paintiff must prove that she suffered special damages—that is she must have suffered

some pecuianary loss in order to recover anything. But once the plaintiff has proved special

damages, she may recover general damages as well.

Ø Libel. Libel is written

or printed publication of defamatory language.

Plaintiff does not need to prove special damages and general damages are

presumed. The minority position

distinguishes between libel per se and libel per quod (not defamatory on its

face).

Ø Slander.

Slander is spoken defamation.

Plaintiff must prove special damages, unless defamation falls in one of the slander per se categories, i.e.

defamatory statements that;

1.

Adversely

reflect on one’s conduct in a business or profession;

2.

One

has a loathesome disease;

3.

One

is or was guilty of a crime involving moral turptitude (most common law crimes);

or

4.

A

woman is unchaste.

Ø Radio and TV Broadcasts are Libel. Defamation in radio and TV programs is

treated by most courts today as libel.

7. First Amendment Concerns. When the defamation involves a matter

of public concern, plaintiff must prove, in addition to the common law

elements:

1.

Falsity

of the Statement; and

2.

Fault

on the Part of the Defendant.

a.

Falsity. In some cases the plaintiff is

constitutionally required to prove some type of fault, plaintiff also has the

burden of proving falsity.

b.

Fault

on the Defendant’s Part. The type of

fault that a plaintiff must prove depends on the plaintiff’s status.

a.

Public

official or Figure Must Prove Actual Malice.

Under New York Times v. Sullivan Rule, actual malice must be proved in

defamation cases.

i. What Constitutes a

Public Figure? A person becomes a

“public figure” by achieving pervasive fame or notoriety or by voluntaryily

assuming a central rile in a particular public controversy.

ii. Definition of Actual

Malice. Actual malice (defined by New York

Times v. Sullivan) is:

1.

Knowledge

that the statement was false, or

2.

Reckless

disregaurd as to whether it was false.

3.

This

is a subjective test. Defendant’s spite

or ill will is not enough to constitute malice.

Deliberately altering a quotation may constitute malice if the

alteration causes a material change in the meaning conveyed by the quotation.

b.

Private

Persons Need Not Prove Actual Malice. Under Gertz v. Welch, where a private

person is the plaintiff, only negligence regarding the falsity must be proved

if the statement involves a matter of “public concern.” (If not a matter of public concern,

constitutional restrictions do not apply).

Where the defendant is negligent, only “actual inquiry” damages are

recoverable. However, where actual

malice is found, damages may be presumed, and punitive damages allowed.

Exam tip:

Note that the status

of the plaintiff (public figure or private person) is relevant only for the

degree of fault required; the element of falsity must be proved regardless of

the status of the plaintiff as long as a matter of public concern is involved

(and you should assume that a matter of public concern is involved whenever

the plaintiff is a public figure).

FAULT AND CONSTITUTIONAL DEFAMATION ACTIONS.

TYPE OF

PLAINTIFF/DEFAMATION

FAULT REQUIRED

DAMAGES RECOVERABLE

Public Official or

Public Figure

Actual malice

(knowledge of the falsity or reckless disregarud as to the truth or falsity).

Pressumed damages

under common law rules (and punitive damages where appropriate).

Private person /

matter of public concern

At least negligence

as to the statement’s truth or falsity.

Damages only for

proved “actual injury” (if plaintiff proves actual malice, presumed and

punitive damages may be available).

Private person /

matter of private concern.

No fault as to the

truth or falsity need be proved.

Presumed damages

under common law rules (and punitive damages where appropriate).

ú Exam Tip:

If a statement of

public interest is true, plaintiff has no cause of action for

defamation. However, if you see this

type of statement on the exam, consider whether plaintiff may have a cause of

action for intentional infliction of emotional distress or invasion of right

to privacy (unless plaintiff is a public figure or matter of public concern

is involved).

8. Defenses to

Defamation.

Ø Consent. Consent is a complete defense. The rules relating to consent to intentional

torts apply here.

Ø Truth. Where the plaintiff does not need to prove

falsity (ie. The statement is about purely private matter), the defendant may

prove truth as a complete defense.

Ø Absolute privilege—Can

Never be Lost. Defendant may be

protected by an absolute privilege for the following; remarks made during

judicial proceedings, by legislators during proceedings, federal executive

officiels, in “compelled” broadcasts, and between spouses.

Ø Qualified

privilege—Can be Lost Through Abuse. Sometimes

the speaker may have a qualified privilege for the following: reports of

official proceedings, statements in the interst of the publisher—defense of

one’s actions, property, or reputation; statements in the interest of the

recipeient; and statements in the common interest of the publisher and

reciepent.

The

qualified privilege may be lost if: (1) the statement is not within the scope

of the privilege; or (2) it is shown that the speaker acted with actual

malice. Defendant bears the burden of

proving that the privilege exists.

ú Exam Tip:

o

Remember that falsity and fault are priam facie case

elements only in a constitutional defamation case. Plaintiff does not need to prove falsity in

common law defamation case because defamatory statements are presumed to be

false; defendant has the burden to prove truth as a defense.

9. Mitigating Factors. Mitigating factors (ie. No malice,

retraction, anger of the speaker provoked by the plaintiff) may be considered

by the jury on the damages issue; they are not defenses to liability.

B.

INVASTION

OF RIGHT TO PRIVACY.

1. Four Branches. This tort includes four kinds of wrongs: (1) appropriation of plaintiff’s picture or

name; (2) intrusion on plaintiff’s affairs or seclusion; (3) publication of facts placing plaintiff in

false light (4) public disclosure of private facts.

Ø Four Branches: This

Tort Includes Four Kinds of Wrongs:

1.

appropriation of plaintiff’s picture or

name. It is necessary to show

unauthorized use of the plaintiff’s picture or name for the defendant’s

commercial advantage. Liability is

usually limited to advertisements or promotions of products or services. Mere economic benefit to defendant (not in

connection with promoting product or service) by itself is not sufficient.

2.

intrusion

on plaintiff’s affairs or seclusion. The

act of prying or intruding must be highly offensive to a reasonable

person. furthermore, the thing into

which there is an intrusion must be “private.”

Photos taken in a public place are not actionable.

3.

publication

of facts placing plaintiff in false light.

“false light” exists where one attributes to plaintiff views that he

does not hold or actions he did not take.

The false light must be something highly offensive to the reasobable

person under the circumstances. For

liability to attach there must be publicity.

i. First amendment

limitation. If the matter is in the

public interest, actual malice on the defendant’s part must be proved.

4.

public

disclosure of private facts. This wrong

involves public disclosure of private information about the plaintiff (e.g.

matters of public record are not sufficient). The public disclosure must be

highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual

statement is true. First amendment

limitations probably apply if the matter is of legitimate public interest.

2. Causation. The

invasion of the plaintiff’s interst in privafcy (under any of the four kinds)

must have been proximately caused by the defendant’s conduct.

3. Proof of Special

Damages Unnecessary. Plaintiff need not plead and prove special damages. Emotional distress and mental anguish are

sufficient damages.

4. Defenses. Some defenses to the right of privacy actions

are consent and the defamation privilege defenses. Generally, truth is not a good defense; nor

is inadverance, good faith, or lack of malice.

5. Right of

Privacy—Miscellaneous. The right of

privacy is a personal right and does not extend to members of a family, does

not survive the death of plaintiff, and is not assignable. The right of privacy is not applicable to

corporations.

C.

MISREPRESENTATION.

(1) intentional misrepresentation; (2) negligent misrepresentation.

1. Intentional

Misrepresentation. (Fraud, Deceit).

Ø Prima Facie case:

1.

Misrepresentation. Misrepresentation of a material past or

present fact.

2.

Scienter.

Scienter, i.e. when defendant made the statement, she knew or believed it was

false or that there was no basis for the statement.

3.

Intent.

Intent to induce the plaintiff to act or refrain from acting in reliance upon

the misrepresentation;

4.

Causation.

Causation(actual reliance).

5.

Justifiable

reliance. Justifiable reliance; and

6.

Damages—Actual

Pecianary Loss. Damages (plaintiff must suffer actual pecianary loss0.

Ø There are no defenses

to intentional misrepresentation.

1.

No

general duty to disclose. There is no

general duty to disclose a material fact, unless the defendant (i) stands in a

fiduciary relationship to the plaintiff; (2) is selling real property and knows

the plaintiff is unaware of, and cannot reaonsbaly discover, material

information about the transaction; or (3_ has spoken and her utterance deceives

the plaintiff. Physical concealment of a

material fact may also constitute misrepresentation.

2.

Third

Party Reliance. If a third party relies

on the defendant’s representation, the defendant will be liable if she could

reasonably forsee that the third party would so rely.

3.

Reliance

on Opinion. Reliance is generally

justifiable only on represenations of fact (And the plaintiff is under no

obligation to investigate the fact).

Reliance on opinion is justifiable only if the defendant offering the

opinion has superior knowledge of the subject matter.

2. Negligent

Misrepresentation.

Ø Prima Facie Case.

1.

Misrepresentation.

Misrepresentation by defendant in a business or professional capacity;

2.

Breach

of Duty. Breach of duty towared a

particular plaintiff;

3.

Causation. Causation;

4.

Justificable

Reliance. Justifiable Reliance; and

5.

Damages.

Ø Genrally, this action

is confined to misrepresentations made in a commercial setting, and liability

will attach only if reliance by the particular plaintiff could be contemplated (ie. For negligent

misrepresentation, forseeabiltiy that the statement will be communicated to a

third party does not make the defendant liable to the third party).

D.

INTERFERENCE

WITH BUSINESS RELATIONS. Prima facie

case: (1)existence of a valid K relationship between plaintiff and third party;

(2) defendant’s knowledge of the relationship or expectancy; (3) intentional

interference yb defendant including breach or termination of the relationship

or expectancy; and (4) damages.

1. Privileges. Defendant’s

conduct may be privileged where it is proper attempt to obtain business for

itself or protect its interests. A

privilege is more likely to be found if defendant (1) interfered with

plaintiff’s prospective business rather than with existing contracts; (2) used

commercially acceptable means of persuasion rather than illegal or threatening

tactics; (3) is a competitor of plaintiff seeking the same prospective

customers; or (4) has a financial interest in or responsibility for the third

party, or is responding to the third parties request for business advice.

E.

WRONGFUL INSTITUTION

OF LEGAL PROCEEDINGS.

1. Malicious Prosecution.

Prima Facie Case: (1) institution

of criminal proceedings against the plaintiff (e.g. filing a complaint with the

police); (2) termination in plaintiff’s favor; (3) absence of probable cause

for prior proeedings (insufficient facts for a reasonable person to believe

that plaintiff was guilty or defendant, in fact did not actually believe

plaintiff to be guilty); (6) improper purpose (i.e. something other than

bringing a person to justice; and (5) damages .

Ø Wrongful civil proceedings. most jurisdictions have extended the

malicious prosecution action to cover civil cases.

2. Abuse of Process. Prima

facie case: (1) wrongful use of the

process for an ulterior purpose, and (2) definite act or threat against

plaintiff in order to accomplish an ulterior purpose.

III. NEGLIGENCE.

A.

PRIMA FACIE CASE. Elements of prima

facie case:

1. Duty. A duty on the part of defendant to conform to a specific

standard of conduct for the protection of plaintiff against an unreasobable

risk of injury.

2. Breach. A

breach of that duty by the defendant.

3. Causation. The breach is the actual and proximate cause

of plaintiff’s injury; and

4. Damages. Damages.

B.

DUTY OF CARE. A duty of care is owed to all forseeable

plaintiffs. If defendant’s conduct

creates an unreasonable risk of injury to persons in the position of the

plaintiff, the general duty of care extends form the defendant to the

plaintiff. The extent of the duty is

determined by the applicable standard of care.

Therefore, when confronted with negligence question, always ask:

1. Was the plaintiff

forseeable?

2. If so, what is the

applicable standard of care?

Ø Foreseeable and Unforeseeable plaintiffs. A duty of care is

owed only to forseeable plaintiffs.

However, a problem arises where the defendant breaches a duty to one

plaintiff (P1) and also causes injury to another (possibly unforeseeable)

plaintiff (P2). The Palsgraff case

offers two possible outcomes:

1.

Cardozo View

(Majority)—Forseeable Zone of Danger. P2 can

recover only if she can establish that a reasonable person would have forseen a

risk of injury to her under the circumstances; i.e. she was located in the

forseeable zone of danger.

2.

Andrews View

(Minority)—Everyone is Forseeable. P2 may establish the existence of a duty

extending from defendant to her by showing that the defendant has bereached a

duty owed to P1.

Ø Specific Situations.

1.

Rescuers.

i. A rescuer is a

forseeable plaintiff where the defendant negligently put himself or a third

person in peril (i.e. danger invites rescue).

However, Firefighers and police officers may be barred by the

FireFighter’s rule from recovering injuries caused by the risks of rescue.

ii. Fire-Fighter’s

Rule. Firefighers and police officers

may be barred by the FireFighter’s rule from recovering injuries caused by the

risks of rescue.

2.

Prenatal

Injuries. A duty of care is owed to a viable fetus. In cases of failure to diagnose a congential

defect or properly perform contraceptive procedure, the child may not recover

for “wrongful life,” but the parents may

recover damages in a “wrongful birth” or “wrongful pregnancy” action for any

additional medical expenses and for pain and suffering for labor; ordinary child

rearing expenses, however, cannot be

recovered.

3.

Intended

beneficiaries of Economic Transactions. A

third party for whose economic benefit a legal or business transaction was made

(e.g. a beneficiary of a will) may be a forseeable plaintiff.

Ø Standards of Care.

1.

Basic

Standard—The Reasonable Person. the reasonable person standard is an objective

standard (ie one’s conduct measured against what the average person would

do. A defendant’s mental defeicincnes

and inexperience are not taken into account (ie. Stupidity is no excuse). However, the “reasonable person” is

considered to have the same physical characteristics as defendant (but,

remember one is expected to know one’s physical handicaps and to exercise the

care of a preson with such knowledge---eg. A blind person should not fly a plane).

2.

Particular

Standards of Conduct.

i. Professionals. A professional or someone with special

occupational skills is required to possess the knowledge and skill of a member

of the profession or occupation in good standing in similar communities. Medical specialist will be held to a national

standard of care. The modern trend

applies a national standard of care to all physicians.

1.

Duty

to Disclose Risks of Treatment. A doctor

has a duty to disclose the risks of treatment to enable a patient to give an

informed consent. A doctor breaches this

duty if an undisclosed risk was serious enough that a reasonable person in the

patients position would have withheld consent on learning of the risk.

ii. Children. Children are

held to the standard of a child of like age, education, and intelligence, and

experience. This is a subjective

test. A child under four is usually

without the capacity to be negligent.

Children engaged in adult activities may be required to conform to an

“adult” standard of care.

iii. Common Carriers. Common carriers and innkeepers are held to a

very high degree of care (i.e. they are liable for slight negligence).

Exam tip

For the higher common carrier and innkeeper standard to

apply, the plaintiff must be a passenger or guest.

iv. Automobile Driver to

Guest. A guest in an automobile is owed

a duty of ordinary care. In few guest

statute states, one is liable to nonpaying passengers only for reckless

tortious conduct.

v. Bailment Duties. In a

bailment relationship, the bailor transfers to the bailee possession of the

chattel but not title (eg. Bailor loans her car to the bailee).

1.

Duties

Owed by Bailee.

a.

The

bailee’s standard of care depends on who benefits from the bailment:

i. For a sole benefit of

the bailor bailment, there is a low standard of care;

ii. For a sole benfit of

the bailee bailment, there is a high standard of care; and

iii. For a mutual benefit

bailment (usu a bailment for hire), there is the ordinary care standard.

b.

The

modern trend applies a duty of ordinary care under the circumstances, whereby

the type of bailment is just one factor taken into account.

2.

Duties

Owed by Bailor.

a.

For

a sole benefit of the bailee bailment, the bailor must inform the bailee of

known, dangerous defects in the chattel.

b.

For

a bailment for hire, the bailor must

inform the bailee of chattel defects of which he is or should be aware.

vi. Emergency Situations. A defendant must act as a reasonable person

would under the same emergency conditions.

The emergency is not to

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