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TORTS OUTLINE - 2ND SEMESTER
I. PRODUCT LIABILITY
A. Who may be liable & under what theory? (has changed w/ time)
1. old rule: caviat emptor,
let the buyer beware, no liability unless there was intentional misrepresentation.
Developed to where P could sue the retailer. Theory = person who sold made an implied
or express warrantee w/ the buyer. Partially contractual, give buyer benefit of her
bargain. Possible only liable for loss of TV, no more.
2. Current rule
a.
What type of loss?
(1) loss of the product - governed by the UCC
(2) injury other than loss of product itself (injury to person or
property) governed by Tort law.
b.
development of Tort law
(1) Winterbottom(613)--Ct said no privity of K, thus no recovery.
Customer couldn't sue manufacturer because of no K relationship.
(2) Macpherson(615)--on neg claim. NY ct allowed P to recover. This was
a great departure.
Now in all states neg based actions are allowed ag/ manufacturer. Must demonstrate
unreasonable product capable of great harm.
(3) ANYONE IN THE MANUFACTURER CHAIN CAN BE HELD LIABLE UNDER NEG
CLAIM. ie retailer liable in neg if they had duty to give an inspection.
RIL used often in these neg cases
Not absolute liability, theory limited - Trainor's concern in his concurring opinion
in Escola
3. Important considerations
a.
Ask first what kind of loss we're talking about and if your js covers this loss.
b.
Who may be liable/sued? Anyone in the chain, the user herself, the theory of the recovery
may vary with the type of D.
A manufacturer or anyone in the chain may be held liable in a neg claim.
B. Policies of strict
liability - from Escola v Coca-cola(cite this case in the test)
1.
loss spreading - manufacturer liable because better able to handle loss, spread it out.
Spread the cost of the injury from the product to all of the consumer by raising the cost
of the product.
2.
loss minimization - manufacturer in a better position to decrease loss, prevent injury and
guard ag/ the recurrance of other accidents. Can take safety precautions much easier than
unknowing consumer. Economic efficiency advocates argue that the manufacturer will only
act for safety if that saves them money, otherwise they'll just pay for the accidents.
3.
proof problems - P's position may be too difficult to prove; records too old, evidence
destroyed in the injury, etc. Doctrine of RIL doesn't always help the P, there may have
been too long of a chain before getting to the P.
C. Restatement 402A (comments as imp as R
itself) [memorize]
1. "protects
consumers or users of a product who suffer physical harm or harm to property from an
unreasonably dangerous product"
2. Imposes strict liability
(SL) on defective unreasonably dangerous products.
3. Some form is enacted in
every state
4. kind of loss covered
a.
physical injury to the consumer/user or their property
b.
limit: no opinion as to whether the section applies to bystanders
(1) Vast majority of cts have allowed bystanders to recover under SL in
this section.
(2) Bystander still has to show causation, they simply don't have to
show carelessness in a neg claim.
c.
East River Steamship Corp v Transamerica Delaval--majority of cases have gone the way the
SC went w/ this case.
no tort action for loss of the product only
recover under K or warrantee
Minority allows recovery under a tort for a defective product.
Intermediate rule: allow a tort action if product creates a risk of personal injury
or injury to other property but only destroys the product. Asks what kind of risk the
product creates. Few js.
649-53 type of loss compensable in a tort action
5. Even though the
manufacturer exercised all reasonable care & it was a component part, still strictly
liable.
6. Not exclusive, can bring a
neg action.
7. Limited Strict Liability
Show that the product was unreasonably dangerous
(1) P bears this burden of proof, part of prima facie case
(2) Has to be unreasonably dangerous at the time that it left the hands
of the seller - comment g
(3) Dangerous to an extent beyond that which would be contemplated by
the ordinary consumer who purchases it w/ the ordinary knowledge common to the community
as to its characteristics - comment i
(a) defined by consumer's expectations of some injury from the product
(b) limits of allergy liability - see duty to warn
(c) jury, fact finder, answers the question whether something was
unreasonably dangerous. The problems of the product must exceed the expectations of the
normal consumer.
8. Proper Defendants
a.
seller = manufacturer, retailer, etc.
b.
component part manufacturer - questionable liability under R, most js say YES they are to
be held liable.
c. R
doesn't apply to occasional seller (garage sale) - comment f
d.
Most ct have held that mere providers of services are not proper defendants of strict
liability actions. Difficult question of defining who is a mere provider of a service.
Murphy v E.R.Squibb & Sons, Inc.
9. Neg action focuses on the
manufacturer and a strict liability action focuses on the product itself.
10. Proof problems - P
doesn't have to show that the product was defective, but still has to show that it was
unreasonably dangerous when it left the hands of the manufacturer, thus may be a proof
problem.
11. Construction defect v
design defect: problem putting it together v problem in the way it's designed (put
together correctly)
Ford and Volkswagon cases
a.
Some cts think 402a shouldn't apply to design defects at all.
b.
Rules:
(1) Construction defects - can sue under both principles
(a) neg-seller knew or should've known of the problem
(b) strict liability - whatever happened in construction made the
product unreasonably dangerous
(2) design defects - 2 types of theories outlined in Barker
(a) consumer contemplation test/same as R test: whether the product as
designed for its intended use was dangerous beyond the contemplation of the consumer.
(b) danger utility test: balances dangers of the product as designed w/
the benefits of the product as designed. Gravity of the danger posed by the design,
likelihood that such danger would occur, mechanical feasability of safety precautions NOT
FOCUSING ON THE MANUFACTURER BUT WHAT IN FACT EXISTED RE/ THE PRODUCT.
In Barker ct shifted burden of proof to D to prove through the danger utility test
that the product was ok
Some cts have used both tests, modified, etc
(c) negligence action if ask what dangers seller should've known about,
strict liability if ask what were the dangers IN FACT regardless of what the manufacturer
know, did, etc
(d) This is a developing area of the law, need to look at the most
recent cases in your state.
(3) Compliance w/ gov regs - what is the effect?
(a) most cts treat gov standards as the minimum, used as evidence, not
conclusive
(b) exceptions were gov regs re-empt state law determining liabiltiy,
thus if complied one could escape liability
(c) gov contractor defense - genrally if gov has approved all the
specifications, advised of dangers, etc.
12. Subsequent improvements
Ford transmission case
a. fed ct evidence rules wouldn't allow the evidence rule 407, ag/
policy - don't want to discourage improvements because of fear of liability
b.
some states cts may allow it
13. Duty to Warn: comment j
a.
the product is dangers by failure to warn of certain situations that make it dangerous
b. 3
approachs:
(1) pure strict liabilty - even though dangers weren't known or
knowable at the time of sale
(2) unavoidably dangerous test (Kearl) - manufacturer strictly liable
for products's dangerous propensities even though dangers were neither known or knowable
unless the product was unavoidably dangerous(drugs, vaccines)cost/benefit analysis to see
if product is dangerous
(3) [neg mixed w/ strict liabilty] maj interp = requires a manufacturer
to give a warning only if they knew or should've known, w/ reasonable skill &
foresight, of danger.
(a) burden on P, unusual for S/L since usually w/ D
c.
only going to get strict liability defenses
d. no
duty to warn of an obvious danger
e.
how and who to warn: drug cases
(1) most products must go to the consumer and in a form that the
consumer can understand.
(2) exception: learned intermediary rule; more responsible, best
position
f.
know both sides of the arg for the oral contraceptive case
g.
review p 698-706 notes on duty to warn
D. P's Conduct - should the conduct of the user make
any difference in a strict liability action?
1. Assumption of risk
Micallef--old rule = no duty to warn of an abvious danger. Ct holds differently w/ a
cost/benefit analysis of putting safety feature.
a.
old rule only had duty to warn of a latent or concealed defect.
b.
assumption of risk re/ more specifically the individual plaintiff and their awareness and
voluntary action of risk. pretty exacting test making it more difficult for D to show
assumption of risk
-notes 719 on open and obvious
-P's misuse of the product, if forseeable will still lead to liability on the manufacturer
2. Contributory Negligence -
P is being unreasonable and his unreasonable conduct contributes to the
injury--unreasonable conduct apart from assuming the risk. Many cts now use comparative
fault statutes in products liability EVEN THOUGH NEGLIGENCE AND PRODUCTS LIABILITY ARE
COMPLTELY DIFFERENT ACTIONS (pure, greater, modified)
3. Always ask: has this
particualr state allowed parative neg statutes to apply to prod liability -- in states
which do't allow con neg, assumption of risk is usually a complete defense.
II. DAMAGES
A. Issues:
1. When calculating damages,
how do you compensate for lost wages?(raises, increase, etc)
2. Medical bills--how much
did insurance co pay?
3. What kind of pain and
suffering iscompensable?
-loss of enjoyment of life?
4. What happens when get a
run away verdict?
5. Under what types of
circumstances do you give punative damages?
B. Pain & Suffering
1. MacDougal & other cts:
a.
Pecuniary = those compensaing for economic loss
b.
non-pecuniary = vague, hard to quantify, pain and suffering, physical & emotional,
loss of enjoyment
c.
Require P to have awareness to recover for pain and suffering
d.
usually allowed becuase viewed as compensatory
2. Loss of enjoyment of life
- ability to engage in activites you enjoy
a.
some cts include this in pain & suffering, but some keep separate - argue both ways,
discuss double compensation, etc
b.
some cts say you have to be able to recognize the loss of enjoyment but "corrective
justice theory of entitlement to bodily interity" says you should be recompensated if
this taken away regardless of awareness.
C. Economic Losses
1. Calculation of damages:
a. Reduce to present value - A DOLLAR TODAY IS WORTH MORE THAN A DOLLAR
TOMORROW BECAUSE I CAN INVEST IT TODAY AND GET MORE MONEY.
(1) required by most cts
(2) doesn't apply to non-econ damages
b.
Prejudgment Interest: if cas drags out P recovers prejudgment interest, takes incentive
away from delays; set by statute
c. use actuary tables to determine probability of life/death, but can
argue that unhealthy person has a greater chance of death
D. Remittitur - trial judge orders judgment reduced,
P has option for a new trial or take a lower award
1. allowed in most states
2. maj allow only in extreme
cases
3. some js have cap on
non-econ damages
E. Taxes
1. What to award for lost
future earnings--should the jury consider what P wouldn've paid in taxes?
a.
Yes, relevant and can be considered; Liepelt
b.
criticism: too speculative, too many variables that affect income tax
2. Total award--should the
jury be instructed re/ the award's suseptibility to taxes?
a.
gen awards not taxable
b.
Yes, ok to give instruction. Easy, not confusing, help jury to not inflate the award
c.
criticism: gives jury something they might not have thought of
d.
depends on js
F. Wrongful birth/life cases
1. Most cts don't allow
damages for support, education of child, etc
2. Ag/ public policy
a.
child is a benefit
b.
force parents to show don't want the child; bad effects
c.
Dr. becomes a surrogate parent by his support
-weak because if the child is born w/ a defect the Dr has to pay.
d.
gen responsibility to mitigate damages could lead to parents choice of adoption or
abortion
-dissent turns this around saying financial pressure could lead to these alternatives
e.
award to the parents, problem w/ certainty that the $ is used correctly for the child
3. Other side
a. No
damages = no incentive to imporve skills. This is easy to overcome by fining the Dr., etc.
b.
damages allowed if child is born unhealthy.\
4. Most cts don't allow child
to sue.
G. Loss of Services - market price of services for
deceased services in the home
H. Mitigation of damages - general duty to mitigate
damages
1. P's conduct makes the
injury worse
seatbelt stuff--Use reasonable standard to evaluate P's choice.
2. Employment - like
contracts, only duty to find a similar job. No duty to find a different job, get
educations, etc
ie no injured lawyer duty to work at McDonalds
3. medical treatment
(reasonable) - failure to get such is a filaure to mittigate; recovery reduce by extent
ijury becomes worse by P's failure to seek med. treatment
I. Collateral Benefits
1. general rule - P is
allowed to recover her full damages from the D wrongdoer notwithstanding receiving
compensation from a collateral source, ie insurance company.
2. collateral sources include
insurance co, gov benfits, etc.
3. The insurance co may have
subrogation rts, usually specified in the policy. If there are subrogation rts usually you
can demand that the ins co take care of pursuing your claim ag/ the wrongdoer.
4. Some states have modified
the collateral source rule.
Utah statute = award reduced by amount of collateral benefit. Utah is different from most
states.
5. notes on 786 other
colateral sources
J. WRONGFUL DEATH--kind of damages urviving members
can recover
1. wrongful death in general
is governed by most states by statute, thus need to check state statute to see WHO can
sue.
-siblings may sue if there is no on else to sue
2. kind of damages:
a.
There is not a consensus among the estates for the type of damages allowed. Some allow
only economic damages.
b.
funeral & medical damages
c.
loss of society
-Evidence of the relationship is admissable going to the issue of how much loss of love
and companionship.
d.
"investment theory" - amount expended in raising the child, most cts like Utah
don't allow these kinds of damages.
(1) Damages are for present and future losses, not past. The parent has
already received a return on the investment by society with the child.
(2) There are some cts that only allow pecuniary damages, those cts
have stretched their definitions to allow for "investment damages" etc (what it
cost to raise the child to age 5)
e.
survivor action possible in some states
(1) the action survives the death of P, the estate pursues the damages
experienced by the decedent.
(2) for medical expenses, pain and suffering and the funderal expenses
(3) A separate action would then be brought by the family, loss of
society etc.--some states lump these two actions together.
f. If
the decedent was a child can recover for the earnings the child would've recovered for the
family but only to the extent that are offset by the costs of raising the child.
g.
loss of consortium - a separate action, not just for sexual relations, but companionship.
Some states allow children can have this action. Don't need to die, can be injured to the
point can't have relationship as before.
K. PUNATIVE DAMAGES
1. policy arguments:
a.
deterrance
(1) general - deterring others from engaging in this conduct, again the
timing may be late w/ respect to that particular harm, but may still say that these
damages put others on notice not to do similar conduct, ie encourage all manufacturers to
give adequate warnings of dangerous products.
(2) specific - sometimes punative damages long after the punative
conduct, thus the specific deterrance goal isn't really affected in that case.
b.
retribution - punishingthe wrongdoer
*This purpose may not be realized very well when teh D is a corporate entity, those who
end up suffering are innocent shareholders or officers at the company who may not have
been at the company at the time of the tort.
c.
Args ag/ punative damages:
(1) When the conduct was in the past D argues that they are being
punished because of a changing societal value, in the past wasn't considered bad but more
evironmentally aware, etc.
(2) overkill argument: many P injured in the accident; deplete the
assets of the D because of these punative damages so that the will either go out of
business and not be able to compensate later plaintiffs.
2. Clear and convincing
standard of proof required by a number of js.
3. Strict liability: most cts
allow punative damages; but to say they are available doesn't mean they will be awarded.
a. P
must show that the D acted "knowinging, intentionally,wantonly, w/ malice",
"w/ reckless disregard for the consequences"(P had reason to know but didn't
act) the standard differs.
b.
mere negligence not enought for punative damages
c.
need to check the js
4. In awarding punative
damages cts often look to see if punative damages are related to the injury, can order
remittitur if think the punative award is outrageous.
L. VICARIOUS LIABILTY/RESPONDEAT SUPERIOR - refers to
when another person is held liable for the conduct of another, most often when an employer
is held responsible for an employee's conduct.
1. Difficult question is
whether the act was s/in the scope of the employment.
a.
2nd restatement of torts agency = conduct is only w/inthe scope of employment when at
least the purpose is w/in purpose to benefit the employer.
b.
Most states have abandoned this, but there are still a few states who follow it.
c.
Most states askwhether the employee was involved in something which involved their
employment.
2. traditional purposes for
vicarious liability:
a.
cost avoider - employer is better at avoiding the cost; employer in a better position of
control and setting up precautions,
b.
"deep pocket" - employer better able to pay than the employee, also in a better
position to get insurance; employer can seek indemnification from the employee
3. The employer doesn't have
to be at all negligent.
4. Some cts say that
employers are responsible for intentional torts as well--big division.
5. frolic and detour - when
employee goes off on some personal errand, employer may not be liable, depends(side trip
to see the ocean) What detour is enough to not hold the employer liable. discussed in note
2 on 822
6. Independent contractors
are generally not subject to the rule of vicarious liability.
a.
The exception to this general rule is when an independent contractor is on the employer's
premises there may be liability.
b.
Difficult question is deciding if someone qualifies as an independent contractor. Use a
test whether the employer has some control over the work.
III. TORT IMMUNITIES: refers to exempting Partially or completely a
potential defendant based solely on the status of the potential D. Don't even have to go
forward to defend the suit based soley on their identity. Be careful to separate it out of
the question of identity.
A. In general immunities have been cut back
over the yrs. Some have been eliminated entirely.
B. CHARITABLE IMMUNITY--varies from state to state.
1. But even in those that
recognize immunity they don't extend it to business activities by charitable orgs.
2. Sometimes it's limited to
non-beneficiaries of the charities.
3. Some states limit the
immunity to those charities w/o liability insurance.
C. FAMILY IMMUNITY:
1. Many states have done away
w/ spousal immunity, only left in a minority of states. Those that preserve it because of
concerns that it'll breakdown the family relationship and collusive suits.
2. Parent/child immunity
reserved only in a few states.
a.
Some states have a very limited immunity including conduct where the discretion of the
parent is at issue.
b.
Many states have done away w/ immunity & hold the parent to a reasonable standard.
3. rebuttals to family
immunity args:
a.
cts can ferret out collusive lawsuits
b.
there's already family discord
c.
unjust to deny compensation to someone who's been tortiously injured by a parent.
4. Many states have granted
immunity only for negligence and only if it involves something other than discretion of
the parent, reasonable parent standard sometimes used.
D. SOVEREIGN IMMUNITY:
1. C/L rule: sovereign cannot
be sued w/o its consent. 1946 Federal Torts Claim Act--still very limited liability.
Doesn't allow prejudgment interest and punative damages. Exceptions: discretionary
function exception is a big exception to liability.
2. 2 prong test:
a.
whether the action by the gov employee was a governed by a choice rather than statutory
requirements,
b.
whether the choice by the fed employee was the result of public policy determinations.
3. Not all discretionary
choices are protected. see note 1 p865, exceptions to fed immmunity under federal claims
act.
E. OFFICIAL IMMUNITY: when particular gov officials
have immunity.
1. Qualified immunity for
most officials: If gov officials are doing discretionary functions then they are generally
shielded unless it's a violation of some clearly established constituional rt understood
by a reasonable person.
2. status of cabinet,
president, congress = immunity
3. municipal immunity --
governed by statute, varies greatly
IV. FALSE IMPRISONMENT
A. Protects ag/ non-physical injury--injury from
insult, shock, insult, mental distress, personal autonomy etc.
1. P may recover even w/o
physical injury.
2. P must be aware of the
imprisonment to recover,can't learn later and sue for mental distress etc.
Many cts follow this, very little case law.
B. INTENT - must be intentional, no action under neg
theory. D muyst intend to confine P or know that ihis conduct is substantially certain to
result in false imprisonment.
C. Confinement v. Obstruction
1. Obstruction is restricting
aperson from going one particular way. --- Obstruction may bring on a different tort.
2. confinement is restricting
a person from going in any direction.
a.
Confinement doesn't need be to a small place - can be in a small city, traveling
automobile.
D. False imprisonment = being confined. If there is a
reasonable escape, a confinement has not occured.
*will there be a false
imprisonment if D takes a girl for a drive and refuses to take her home unless she has sex
w/ him? --->Was there a reasonable means of escape?
E. Any general restraint is sufficient to constituion
an imprisonment.
1. Any demonstration of
physical power which, to all appearances can be avoided only by submission, operates as
effectually to constitute an imprisonment, if sumbmitted to, as if any amount of had been
exercised.
2. If a man is restrained of
his personal liberty by fear of a personal difficulty, that amounts to false imprisonment.
F. Different between keeping someone in and keeping
someone out. Keeping is is false imprisonment, out is not.
G. shoplifting scenario - many states give a merchant
a defense to false imprisonment, but must act reasonable and only after probable cause.
V. INENTIONAL INFLICTION OF EMOTIONAL DISTRESS [IIED]
A. Cts have been very hesitant about recognizing this
tort.
1. Difficult proving and
measuring mental damages.
2. Floodgate concern of
opening door to suits for trivial matters.
3. Wilkinson -early case
allowing damages for mental distress.
B. Courts were more likely to allow recovery for
injury if IIED could be shown to be "parasitic" off another tort.
C. Most states have now adopted restatement
approach-- intentional infliction.
1. D must act intending to
inflict emotional distress, or knowingly acts in a manner which it is reasonably certain
to result in ED.
2. Some states allow damages
under restatement's reckless standard.
3. Some only for intentional
injury.
4. Restatement does not
require bodily harm. Mental distress is enough. Some court require the bodily harm
element.
D. Standard is "outrageous and extreme"
1. intentional or
recklessly--no requirement of malice or ill will, must have a high probability that
distress will result
2. bodily harm not necessary,
but allows recovery for it
3. D acting toward the P
4. Conduct may be outrageous
because of D's knowledge of P's particular condition--eggshell P only applies if D knows
of condition.
E. 3rd party -- If a person is acting intentionally
and another person is injured it's more difficult.
1. ? of intent, could apply
transferred intent--most cts don't allow doctrine of transfered intent.
2. 3rd party must be PRESENT
- "who is present"
a.
Does D need be aware of the 3rd person? May be was in the next room
b.
Impute to D a knowledge that 3rd party was present
3. type of injury required...
a.
family no requirement of bodily harm but...
b.
non-family member limited to results of bodily injury
F. Emotional distress must exist in fact, and must be
severe--if P doesn't know or doesn't care, no tort has occurred.
G. 1st Amendment concerns: In IIED cases where
emotional distress comes from speech.
1. P must meet standard for
libel to recover damages--"false statement of fact which was made with `actual
malice.'"
2. A reasonable reader or
hearer would have to think that it was true--publication must purport the statements to be
fact.
VI. NEGLGENT INFLICTION OF EMOTIONAL HARM
A. D causes P's emotional distress negligently.
1. P walks under construction
zone and gets whacked in the head by tool negligently dropped by D. P recovers damages for
emotional distress under pain and suffering.
2. If P does not get whacked,
but gets scared, P can recover under NIEH.
B. This area of law is not well defined by the
courts.
C. Idea of disporportionality may influence the ct in
not allowing damages for injury caused by neg.
D. Impact rule: had to have actual contact to recover
1. Touch may be very slight
2. Many cts have retained
this requirment
exceptions:
a.
for the neg transmission of a message concerning death
b.
neg handling of a corpse
E. Zone of Danger rule: P has to be in actual danger
herself in order to recover.
1. Dillon gets rid of this
test: Requirements under Dillon
a.
near scene of accident
b.
shock must come from first-hand experience [contemporaneous observation] v. learning about
accident later
c. P
and victim must be closely related
2. Many cts have retained the
zone of danger rule
F. Molien added 2 more tests
1. Foreseeability requirement
--foreseeable that P injured by the neg conduct.
2. Standard of areasonable
person for one who would experience mental distress.
VII. DEFAMATION
A. Protects non-physical interest, intjury to
reputation
1. Slander - defamatory oral
statements
2. libel - written or in some
permanent form--movie, video, tv, radio broadcast
B. Typical claims:
1. newsppaer article or media
report that city council convictd when merely arrested and charges were dropped.
2. supervisor of corp A
recives a call from corp B and requests info re/ emplyee apply to change companies and
says was below average and substandard
3. clergyman in sudan meeting
discusses several memberw w/o giving name and state their actions are contrary to charch
perhaps talking about political activities.
C. Discussion has become a balance between P's
interest in protecting their reputation and society's interst in protecting free speech.
D. Basic requirements:
1. "a publication":
a terms of art in tort litigation. Mims ct defines publication as a
written letter to someone other than the plaintiff.
There must be someone other than the P to see or hear the defamatory statement.
2. Most js & R allow a
statement to the D's or P's agent to count as publication. However, this may be
privileged.
3. compelled publication by
the P--if P put in a position where he has to pass on the conversation, some cts allow
this as publication. Normally if a P publishes he can't recover. see notes on 1071-72.
4. Statement must be
defamatory--must show the P's reputation is in fact injured.
a. No
requirement of a majority
b.
"prejudiced in the eyes of a substantial and respectable minority".
c.
Must be looked at in context to see if it was defmatory, and not simply opinion
E. Remedies in Defamation
1. General Damages: in libel
and slander per se, P does not have to show actual (special) damges--jury is allowed to
presume damages and compensate w/general damages. However, it is common for P in such
cases to put on evidence of special damages anyway.
2. SPECIAL DAMAGES
a.
libel per quod and libel per se
(1) libel per quod requires extrinsic evidence
(2) If show per se can get general damages w/o showing special damages.
(3) Today anything that is fixed in some permanent form is libel per
se, thus don't need prove special damages.
b. If
in realm of slander, oral, P must prove special damages if don't show slander per se.
Slander per se:
(1) loathsome disease,
(2) criminal conduct,
(3) imputation of unchastity,
(4) slander of a person's trade or profession
[see pg 1096]
c.
Other than these categories must show special damages to recover.
d.
some ct thinnk loss of reputation and health constitute special damages. Others require
something tangible. see notes 1 & 2, 1104.
F. A retraction after a libelous statement has been
made will not absolve liability.
1. May go for mitigating
damages.
2. Many states have express
retraction statutes. Review p. 1116-17.
G. PRIVILEGES: defense available to D, after P has
demonstrated a defamatory statement. See notes end of Faulk for a good summary. *Affected
a great deal by constitutional overlay.
1. Two kinds: absolute and
qualified.
a. If
absolute, P cannot prevail.
b. If
qualified, P can prevail, usually if it shows malice.
(1) Malice in defamation = D made statement knowing it was false or
w/reckless disregard for whether the statement was true or false.
(2) In case where there is a public figure, the P is going to have to
show actual malice in the first place.
(3) In some js, P need only show negligence to defeat the qualified
privilege--the D did not have reasonable grounds enough.
2. 3 requirements of
privilege:
a.
Interest of the speaker involved
--self-defense, defend their reputation
b.
Interest of the audience
--new employer seeks info from former employer
c.
(both parties) common interest in & reciprocal duty
--employer/employee re/ another employee
3. Privilege in the Public
Sphere:
a.
Absolute privilege for judical proceedings, statements made in the course of. Can't be
defeated.
(1) Privilege for all statements made "during a legal
proceeding."
(a) However, statements made outside the judicial proceeding, are not
privileged.
(b) Most js don't include statements made to the press.
(2) What constitutes a "legal proceeding?" In the course of
the trial, or contained in the pleading; pleadings, comments, testimony, etc.
(3) Most jurisdictions have ethics rules regarding what attorneys can
say about ongoing criminal trials. Mostly applies to defense attorneys. Prosecutors can
usually call a press conference and say whatever they want to.
b.
Similar absolute privilege by statements made by members of congress or state legislature
if made in course of their duties, same w/ administrative officers.
c.
May extend to other partially public bodies, ie town meeting called by citizens.
d.
There is a privilege for reporting an accurate and complete summary of a government
report.
(1) If the summary is unfair then the privilege doesn't apply and will
not protect the D from defamation.
(2) justification for the privilege for summary of official
proceedings--encourage disseminating info of the government, maintain confidence in gov.
4. Analyze under the c/l
privilege, then go to constituional analysis. What interest is the c/l privilege trying to
protect?
5. fair comment privilege -
c/l has long recognized some kind of privilege for comment of artistic criticism.
Difficult ?s:
a.
how to draw the line between criticism on the work adn on the author himself,
b.
protected opinion and unprivileged false fact
6. New York Times:
a. 2
competing values:
(1) Interest in protecting the reputation of the P.
(2) Interest in protecting freedom of speach. Especially "core
political speach"--kind long recognized as deserving protection, high protection.
b.
How to balance the interest?
(1) --standard--> public official must show not only a defamatory
statment, must also show statement made w/ ACTUAL MALICE = knowledge that the statement is
false, or w/ reckless disregard for truth or falsity.
(2) liabilty for defamation is strict in c/l. But adding the
constitutional requirements, must show the D acted w/ malice.
(3) rationale for this change = public interest of free speach, 1st
amendment, especially speach that criticizes the gov--core speach, speach that critizes
the gov, gets upmost protection.
c.
Thus some false statements will be protected that shouldn't be--see Brennan's arg on 1156.
(1) What interest in protecting false statements? worrying about
self-censorship, may not publish unless very certain of the truth. This standard may allow
some false statements by the press that are protected.
(2) Doesn't mean that all are protected.
d.
Concurring opinion of Douglas & Black--no limits whatsoever, no defamation action for
a public official.
7. Treatment of defamation
actions brought by public officials ag/ media defendants.
a.
New York Times increased the standard.
b.
Public official P must show actual malice w/ CLEAR AND CONVINCING evidence, see note 3.
c.
Evidence that NY Times had info in their actual files was found to insufficient to =
actual malice. There must be some evidence that the D subjectively sustained, note 2,
doubt re/ truth.
d.
Fabricated quotations may be enough for actual malice, SC said that it should've gone to
the jury to be decided.
e.
Case left open whether the actual malice standard would apply to statements re/ private
conduct of private officials.
f.
1162note, actual malice standard applies to a particular official or candiate if they re/
their fitness for office.
g.
Leaves ? what is left, that is not covered by this standard. Most commentatotrs believe
some comment on private life of official may still be at the lower level.
h.
Cases involving non-medida defendants is questionable whether
there is the same standard.
i.
Who qualifies as a public figure? Public interest in their activities. Must be in the
public eye before the allegedly defamatory statement is made.
j.
How do we determine if something if defamatory, after establshing that it's false? Does it
really hurt their reputation?
-use the standard from before of a sub-group's impression of him, doesn't need be the
majority.
8. private figure plaintiffs
a. SC
declined to find that the actual malice standard extended to private plantiff figure.
b.
States can define the appropriate standard, except strict liability.
(1) States can impose a neg standard for private figure plaintiffs.
(2) Some states have set the standard at actual malice.
c.
Can a media defendant ever be held strictly liable?
Still in question whether could hold media strictly liable for printing something that's
not of public concern (?).
d.
Private figure plaintiff who cannot prove actual malice is limited to damages for actual
injury--thus must show some actual injury. Presumed and punative damages aren't available
unless actual malice is shown.
e.
Dunn & Bradstreet--note case, not a matter of public concern & non-media defendant
can get presumed damages w/o showing actual malice. see pg1185.
9. P has the burden of
proving falsity
a.
Philadelphia Newspaper v. Hepps, ct shifted the burden on truth/falsity where there is a
media defendant.
b.
Leaves the question open where it is a non-media defendant and not a question of public
concern.
H. fact v. opinion--(handout case & notes)
1. SC has said there is no
special category for opinon, judge like all others, must consider what facts it's based
on.
2. 4 part test from J. Starr
pg 1193.
3. Cts apply different tests,
some ask what a reasonable reader would think.
4. Who determines whether
it's fact or opinion? In most cases the judge will decide because made after a motion for
summ judgment.
I. What makes something a matter of public concern?
ct said credit report in Dunn & Bradstreet was NOT a public concern. Because ct has
focuses on identity of P, don't have a clear definition from the SC what is "public
concern".
VIII. PRIVACY
Cts have been grappling with a new right of privacy.
Arguably different from different protected in defamation law and
infliction of emotional distress torts.
Privacy tort trying to get at something different.
Most cts have been heavily influenced by the Warren Brandeis law
review article.
A. APPRORPIATION OF SOMEONE'S NAME OR LIKENESS, at
least if is it used for some commercial use.
1. Most js have recognized
this tort.
2. Most have been a statutory
recognition, some have been from case law.
3. R 652C (p 1210)- One
who appropriates to his own use or benefit the name or likeness of another is subject to
liability to the other for invasion of his privacy.
-not necessary to have a commercial use.
