1 Heather Baker Torts II Outline Spring 2006-Miller I. Owners and Occupiers of land A. In general: 1) limited duty analysis-it you did normal duty analysis, you find a duty, but traditionally for some policy reason there was no duty 2) high value in English common law placed on land-reason for limited duty B. Four classifications of plaintiffs 1) Persons off the premises a. Def.-person outside on public highway or private property b. Natural conditions: no duty c. Artificial conditions: normal duty analysis-reasonable care d. Activities: normal duty analysis; reasonable care e. Exceptions: i. Trees (a) known defect-reasonable care (b) duty to inspect; rural-no, urban-yes (c) modern rule: (1) No duty and reasonable care look at surrounding circumstances (number of trees and frequency of passers (2) Taylor v. Olsen-natural cond. of the land, person off the premises-no duty ii. Deviations (a) Reasonable care to p making short, necessary deviations or for traps 2) Trespassers-duty only arises once the trespasser is known a. Def. person on land or premises w/out consent b. Natural conditions: no duty; but R. 337-duty to warn know trespass. c. Artificial conditions: No duty to unknown trespasser d. Activities: no duty to unknown trespasser e. Exceptions: i. Public crossing-need reasonable care ii. Discovered trespasser-reasonable care iii. FTLA iv. Tolerated intruder v. Children-reasonable care (a) attractive nuisances vi. Modern rejection of categories (a) Rowland v. Christianson 3) Licensees a. Def. Person on premises or land with permission for own purposes includes social guest b. Natural condition-duty to warn or make safe known to d hidden condition c. Artificial conditions: duty to warn or make safe known to d hidden conditions d. Activties-normal duty analysis: reasonable care e. Exceptions: i. Children-reasonable care ii. As to condition RS 342 imposes a reason to know standard iii. Modern rejection of categories 4) Invitees 2 a. Def.-Person on land or premises w/permission for owner or occupiers purpose or for purpose for which premise held open b. Natural Condition: normal duty analysis-reasonable care unless p knows or should have known because it is obvious of danger c. Artificial conditions: normal duty analysis-reasonable care even if danger known by p d. Activities: normal duty analysis-reasonable care e. Exceptions: i. Children-reasonable care ii. Person exceeding scope of invitation-becomes licensee iii. Modern rejection of categories iv. D may also be liable for intentional or even in some cases criminal acts of others on premises; e.g. durk accosts customer C. Explanation of subcategories for each divided by injury (after p type decided) 1) Natural conditions: conditions which arise in a state of nature; before the land has been altered by humans 2) Artificial conditions: human made alterations to the land 3) Activities which occur on the land II. Strict Liability A. In General 1) Strict liability is liability w/out intentional misconduct & w/out negligence… won’t usually be merely causation, usually causation plus 2) Negligence is always available along w/strict liability 3) Certain situation when def. can be liable even if exercised reasonable care B. Two categories of strict liability 1) Animals a. trespassing animals-animals that go on someone else’s land w/out owner’s permission i. strict liability for trespassing animals, exception for animals on an highway: those being brought to market, so for those whose land adjoins the highway, the standard was regular negligence; but didn’t apply when you went to a non-adjoining person’s land ii. none of these rules apply to dogs & cats iii. American attitude toward trespassing animals 1. rejected the English rule completely-no strict liability for animals, US had a lot of open land 2. fencing out doctrine-no strict liability for trespassing animals unless p had fenced them out 3. fencing in doctrine-no strict liability as long as def. had fenced them in 4. adopted English strict liability a. when animal injure someone-if you have wild animals and they injure someone, strict liability i. some states have the circus exception, if you exhibit animals-the standard is negligence….should social utility be a reason for not holding someone to strict liability? ii. dogs and cats-1 bite rule-domestic animals-negligence controls unless the owner knows(subjective) or has reason to know(objectivegreeate standard than foreseeability) of the animal’s dangerous propensities 2) Abnormally Dangerous Activities a. Restatement 519: 3 i. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattel of another resulting from the activity, although he has exercised the utmost care to prevent the harm ii. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous b. Restatement 520-Factors to determine whether the activity is abnormally dangerous: i. existence of a high degree of risk of some harm to the person, land or chattels of others; ii. likelihood that the harm that results form it will be great; iii. inability to eliminate the risk by the exercise of reasonable care iv. extent to which the activity is not a matter of common usage v. inappropriateness of the activity to the place where it is carried on; (a) To what degree is the possible damage increased by the number of people present and the amount of property that can be damaged vi. extent to which its value to the community is outweighed by its dangerous attributes c. Abnormally Dangerous Activities Analysis-Blasting & storage of explosives i. high degree of risk: most blasting materials are volatile, can be handled safely only by experts subject to elements ii. likelihood that the harm will be great: explosions can kill and significantly damage in large area iii. inability to eliminate the risk: may need expert, but accidents do commonly occur even though experts use material and precautions are taken. May have to use utmost care. iv. Inappropriateness of the activity to the place-blasting and storage of explosives is inappropriate to urban area because of the proximity of people and home v. value to the community-not so valuable that imposition of liability will do anything but raise cost. Where town’s livelihood depends on it, social benefit may outweigh danger d. There’s no strict liability when there is an unforeseeable intervening act i. Normal rules of proximate cause apply to strict liability ii. Golden v. Armory-no liability for hurricane e. Traditional contributory negligence does not bar an action for strict liability i. modernly, comparative negligence may bar part of the claim by p, but d will be strictly liable III. Products Liability Setting***-will be on exam A. In General 1) Liability of manufacturers and distributorsaa defs are usually purchasers, users of product or bystanders injured by product 2) Keep separate products liability q w/abnormally dangerous qs 3) 3 causes of action for products liability: a. negligence b. warranty i. express warranty and ii. the implied warranty of merchantability c. strict liability in tort-in addition to causation, there has to be proof that he product is defective 4) Historical analysis of products liability a. Winterbottom v. Wright-the seller of a chattel is under no liability in contract or tort to anyone other than his immediate buyer i. this was before strict liability for products 4 ii. manufacturers would get around liability by using a retailer as an intermediary b. MacPherson v. Buick Motor-Cordozo-auto w/a defective wooden wheel, the spoke cracked, caused an accident….sued retailer, but they were not negligent, so sued manufacturer for negligence for failure to inspect i. Cordozo opened up negligence as a product cause of action ii. For products negligence is allowed for manufacturers, component manufacturers, and raw material manufacturers iii. Privity is no longer a problem c. Baxter v. Ford Motor company-Ford represented that glass is shatter proof, a pebble hit the window and it shattered-express warranty d. Hennignson v. Bloomfield-purchaser’s wife driving new car, suddenly swerved, ran into wall, the case said the car didn’t meet standards of implied warranty of merchantability i. expansion to someone not only to one not in privity, but also to personal injury e. Greenman v. Yuba Power products-no longer using merchantability…started using strict liability in torts, created by CA supreme court 5) What are we worried about here? a. What’s the mechanism we will use here for shifting the burden of the loss? b. Products liability is a way to shift liability to the market place for taking on the burden of the loss B. Negligence in Products Liability 1) Duty a. Conduct: manufacture of distribution of product, component or raw material b. Foreseeability of the risk i. Assume that the manufacturer knows environment of its use ii. Dangers associated w/normal or intended use are always foreseeable, although some of these dangers are considered obvious dangers and will not lead to liability (1) Playschool toy figures are intended for use w/small children; foreseeable that child will put in his/her mouth iii. But may be liable for foreseeable risk resulting from unintended use (1) Chair will be used to change light bulb; may be duty to design it strong enough to withstand weight iv. However, not liable for risks associated with completely unforeseeable uses v. Finally risk may be so obvious that there will be no liability (1) Skillet gets hot and will burn flesh c. Unreasonableness i. Use Caroll Towing balancing test ii. Number of products where it’s not negligent to sell dangerous items when the social utility is so great iii. Social utility can outweigh other factors d. Standard of Care i. Standard of the ordinary prudent manufacturer or distributor of that product ii. Presumed to be an expert or a specialist in that product field. e. Foreseeable Plaintiff i. Often statutory provisions control who can recover ii. Worthwhile to speculate who could recover 5 2) Breach a. Factual Analysis-almost always used i. Basic Analysis (1) What would ordinary prudent manufacturer or distributor of products do or not do? (2) What did d do or not do (3) If d did something that ordinary prudent manufacturer would not have done or failed to do seomthing that ordinary prudent manufacturer would have done, there is breach ii. Factors which a court might consider in determining what ordinary prudent manufacturer would or would not have done (1) Custom in the industry (2) Length of time article has been used w/out danger b. Res Ipsa-usually not available (1) product is usually in control of the consumer (2) Therefore, product is not in exclusive control of the manufacturer c. Violation of statute (1) available if requirements are met e.g. back up bell on delivery truck d. Basic categories of breach: (1) Design Defect: failure to use reasonable care in the product design i. usually design process is somewhat well documented & so its easy to compare what d did to what ordinary prudent manufacturer would have done ii. ex. Design of a jet ski w/out a kill switch (2) Mismanufacture i. manufacture allowed one or more units of the product to vary from the proper design or level of quantity ii. Look @quality control: failure to prevent or discover an assembly flaw or adulterated raw materials iii. Ex. Auto w/missing bolt which causes brake failure (3) Failure to provide proper warning i. some products are safe if properly used, but proper use and dangers may not be obvious to consumers ii. May have to duty to supply adequate instruction & warning of non-obvious dangers iii. Means to be adequate to reach consumer iv. Ex. Toxic materials, chemicals, pharmaceuticals 3) Cause in Fact a. Injury must be caused by the breach (design defect, mismanufacture, or failure to provide proper warning) b. Usual analysis…but for test or substantial certainty 4) Proximate Cause a. Defect must be in the product when it leaves d’s hands, otherwise an intervening cause 5) Damages a. the same as for all negligence cases 2) Warranty-express and implied; road toward strict liability A. Express Warranty/Public Misrepresentation a. Restatement Second 402(b) is the standard we will use b. Elements of the cause of action: (1) Commercial seller-D must be in the business of selling chattel (2) Misrepresentation: must have a statement made to the public which is false or untrue i. Statement: 6 (a) of material fact concerning quality or character (b) Express: written or oral ii. Public: made to public through: (a) advertising, labels, manuals, press releases, etc. iii. Intended or expected to reach public (jurisdiction dependant) iv. Misrepresentation: statement must be shown to be false or untrue (3) Justifiable reliance (not required in every jurisdiction) i. Right to rely-must be kind of statement which p has a right to rely (a) more than just mere puffery or statement of quality (b) ex. This glass is shatterproof ii. Actual reliance: some variation among jurisdictions (a) some jurisdictions required that buyer see or hear the misrepresentation and that the misrepresentation play a material part in decision to purchase (b) others merely require that statement be made in a time and manner which would have allowed p to rely (4) Causation in fact a. Normal causation analysis b. but the quality which is misrepresented must cause the injury (5) Proximate cause-usual analysis (6) Damages: a. personal injury b. injury to property c. may recover for emotional distress, pain & suffering (7) But you do not need to show a. Privity of contract b. Negligence c. Fraud (a) intent to induce reliance or (b) knowledge of falsity d. Intentional misconduct B. Implied Warranty of Merchantability a. Introduction: i. cases like Henningson (new car crashes into wall) made merchantability available in the personal injury setting ii. There is wide divergence among jurisdictions in its use (1) when some states adopted strict liability in tort they limited merchantability to commercial cases (2) some states which have not adopted strict liability in tort use merchantability for both commercial & personal injury products liability cases. (3) In some states merchantability exists as a separate cause of action at the same time as strict liability in tort & both can be used *we are concerned w/(2) and (3) only b. Implied warranty i. Requirements (1) Merchant:UCC-seller is a merchant w/respect to goods of that kind (2) Plaintiff must be a part of the protected group which is defined according to which of 3 alternatives a state adopts (a) buyer, family, household, guest if reasonable to expect that person may use, consume or be affected (b) any natural person who may reasonably be expected to use consume or be affected or injured in person (c) any person 7 (3) Defect: UCC 2-314-Goods to be merchantable must be at least such as… are fit for the ordinary purposes for which such goods are used (a) fitness-the buyer has informed the seller what he plans to use the product for, then the seller says…then you better buy this product (4) Cause in fact: defect, know just product must cause injury (5) Proximate cause: usual analysis (6) Damages: in consumer setting must have injury to person or property ii. Result: (1) subjects d to strict liability (2) no need to show that d did no exercise reasonable care (3) no need to show intentional misconduct iii. Privity: requirement abolished iv. Jurisdictions which use merchantability in personal injury setting have removed all/many requirements of UCC. (1) rules allowing disclaimers do not apply. In other words cannot use express warranty to disclaim implied warranties (2) Cannot place limitation on personal injury damages. UCC allows limitation on consequential damages if express unless it is unconscionable; limitation on personal injuries is per se unconscionable (3) Notice not required c. In jurisdictions that have both warranty and strict liability in tort the analysis is different between the two causes of action i. Warranty requires a showing that the product is not fit for ordinary purpose for which it was intended ii. Strict liability in torts requires a more complicated risk benefit analysis 3) Strict liability in products liability A. Prima facie case for strict liability in torts 402(A) i. D has to be a commercial supplier of the product a. raw materials suppliers b. component manufacturer c. assemblers d. wholesalers e. retailers f. lessors g. service providers ii. Product is defective-unreasonably dangerous to the user or consumer a. mismanufacture b. design defect c. failure to properly instruct or warn iii. Defect must be in the product at the time it leaves the hand of the D, and must be delivered to the consumer w/out substantial change iv. Damages-no pure economic loss v. Causation vi. Proximate Cause B. Other important general info. i. To establish the manufacturers liability, it’s sufficient that P proved that he was injured while using the product in a way it was intended to be used as a result of a defect in design and unsafe for its intended use (Greenman v. Yuba Power products) ii. Notice requirement is not appropriate for customers (injured consumers) who have never been in contact w/manufacturers; intricacies of commercial law are not suitable for commercial suits C. Mismanufacture i. Definition of mismanufacture: 8 (1) A product is mismanufactured when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product (2) No matter how much care they used there is still liability as long as they departed from intended design ii. Defect should have been there at the time the product was sold (1) if there’s an after-market manufacture, opens the door to argument that a later workman could have caused the mismanufacture iii. Compare this product, intent to design and other products in the same product line D. Design Defect *use reasonableness-balancing test for all 4 tests i. Ordinary Consumer expectation test-*would the ordinary consumer expect the product to perform in the way that it did a. Is the product dangerous in a manner that exceeds the expectation of the ordinary consumer? b. Is it dangerous beyond the ordinary expectation of the consumer? c. Restatement 2, 402(a) example (1) butter: consumer expects that it may cause high cholesterol, heart disease clogged arteries, stroke…but if the butter is rancid and toxic and makes you sick in that way-beyond what the ordinary consumer would expect ii. Constructive Knowledge test a. Assume that the def. knew about the danger and then say would the ordinary prudent manufacturer have put the product on the market w/this knowledge? b. Would it be negligent to put it on the market? c. Is it reasonable to put this on the market if you knew how it was dangerous? iii. Wade Keaton-Risk/Utility analysis-most thoroughly throughout (1) Usefulness and desirability of the product-its utility to the user & to the public as a whole (2) The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury (3) The availability of a substitute product which would meet the same need and not be as unsafe (4) The manufacturer’s ability to eliminate the unsafe character of the product w/out impairing its usefulness or making it too expensive to maintain (5) The user’s ability to avoid danger by the exercise of care in the use of the product (6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability bc of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions (7) The feasibility on the part of the manufacturer, of spreading loss by setting the price of the product or carrying liability insurance iv. RAD-Reasonable Alternative Design Test-Rest. 3d of products liability *may be a step backward a. A product will be defective if the foreseeable risk of the product could have been reduced by a reasonable alternative design b. to be defective there has to be a reasonable alternative c. what if product is so dangerous that it shouldn’t exist at all and there is no replacement for it d. if something is state of the art it’s not defective E. Failure to Warn (3rd type of Defect) i. have to know of the risk or have reason to know in order to be held liable to warn ii. there is no requirement for a warning for a scientifically unknowable problem (1) but there are cases to the contrary 9 (2) ie asbestos litigation case-Basidia v. John Mansville Products Cop-a failure to warn is not negligence, failure to warn is a risk spreading device, since its risk spreading, doesn’t matter if it was knowable iii. there is not duty to warn about obvious dangers iv. a product is defective b/c of inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced v. learned intermediary rule-when you have a product that is not dispensed directly to the user, but is dispensed to a learned intermediary, there is no duty to directly warn the user of dangers (1) but the learned intermediary must be warned F. Other aspects of strict liability i. Most states allow comparative negligence in strict liability ii. Misuse-3 different analytical approaches (1) misuse means that the product is not defective (2) if the pi s the one who misused the product, the misuse is comparative negligence, if p negligent (3) if it’s not the p who misuses the product, the misuse could be an intervening cause-do normal analysis iii. Pre-emption-does federal law preempt state law?: (1) is there truly a conflict between state and federal law (2) did congress intend for the state law to be preempted by the fed. Law (3) if this is an area of traditional state governance,then presumption is that congress did not intend fo the federal law to pre-empt (torts are generally state law) (a) Medtronics-pre-emptive case in this matter: unless congress specifically says so, drug and food laws are minimum safety standards and are not intended to preempt state law regarding negligence or strict liability (4) stated reason to advocate federal tort law (a) national manufacturers of product find it difficult to conform to the laws of the 50 states (b) manufacturers think they can influence congress regarding the law more than they can influence the 50 states iv. Horizontal privity and vertical privity (1) Horizontal-potential plaintiffs -purchaser if they were injured -extended to bystanders -limit on who can recover is proximate cause -no recovery for pure economic loss (2)Vertical-producers or defendants; possible defendants: p. 786 A. Raw material suppliers a. 2 main problems that create defects 1) adulterated raw material (design defect or mismanufacture) 2) raw material suppliers will recommend the wrong materialusuuall become warranty under warranty for a specific purpose B. Component suppliers-almost everything has component manufacturers C. Manufacturers-assemble components D. Wholesalers and distributors-have been liable for strict liability in tort 1) they are integral to modern production and distribution E. Retailers-sell directly to the consumer v. No liability for sellers of used products (1) seller of used products are not capable of distributing risk (2) used products routinely have defect from consumer use vi. A retailer may be negligent if it doesn’t discover certain defects 10 (1) ie cars sold w/out proper # of lug nuts (2) wholesalers and retailers are never negligent for failure to discover a defect if the defect is in a product in a sealed product vii. Sells of real property (1) usually no strict liability for real property (2) warranty of habitability-is kind of like strict liability, analogous to merchantability (3) mass produced track homes are a product and can be subject to strict liability viii. A provider of a service is not liable in strict liability ix. Problem of dual character service/product (1) supplying blood is almost always considered a service x. Think of tort reform as interenal reform or external reform (1) internal-changing law dealing w/product liability, changing the def. of defect (a) for design defect use negligence not strict liability (2) external-limiting contingency fees in class action, doing away w/juries in product liability cases IV. Defamation A. Elements of a prima facie case 1) Defamatory Statement: a false statement that exposes a person to distrust, hatred, contempt, ridicule, hatred, contempt, or obloquy (humiliation, disgrace, or shame)… OR words that have a tendency to injure a person in his office, occupation, business or employment a. It MUST be False b. statement must be about the pl c. if the statement is defamatory, we will presume untrue, shifts burden of the defendant to prove that it’s true 2) You must have a Publication of the statement, must be communicated to a third party and the third person must understand the defamatory statement applies to the pl 3) Basis of Liability-if D acted negligently or if D acted w/malice or D is subject to strict liability. The basis of liability will be raised or lowered depending on the level to which free speech rights are involved. Public figure or public official will NOT be defamed unless there is malice. 4) Damages-there are some situations where damages not required, a. possible to have nominal damages b. P doesn’t have to prove p was injured c. but in some situations, do have to prove actual damages B. Historically-2 torts 1) Libel: written defamatory 2) slander: verbal defamation C. Defenses 1) Truth-is an absolute defense to defamation a. P has tot prove statement is untrue. But, if P can prove the statement is defamatory, then a presumption will arise that the statement is untrue (thus shifting the burden to D) b. must be substantially true; but not in every detail 2) Privilege a. Traditional common law (absolute & qualified) b. Constitutional 3) Substantial truth-some courts say substantial truth is a sufficient defense a. called a liar, cheat and a thief, but not actually a liar b. man w/4 fingers; A says 3 fingers; NOT defamatory 11 c. when statements are substantially true, a judge determines if it is capable of being false, and a jury determines if its false(defamation) D. Defamatory Statements 1) examples: he’s a liar, cheat, thief, drunkard, insane, refuses to pay debts 2) non defamatory examples: he’s dead, has no personal address, is a republican, democ. E. Types 1) Slander-spoken defamation and special damages MUST be proven a. special damages are economic/pecuniary damages, can be actual or potential damages, damages MUST naturally flow from defamation, illness/loss of friendship is not enough i. ex: loss of marriage, income, profits, customer, employment, etc b. UNLESS-Slander per se….no special damages necessary, there is a presumption of injury i. Imputation of Major crime ii. Loathsome crime iii. Business, trade professions, or office effects iv. Serious sexual misconduct 2) Libel – written or printed defamation including tv or radio (regardless of script) have presumed general damages b/c of publication; special damages do NOT have to be proven (it’s per se) a. a civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule or obloquy b. which has the tendency to injure such person in his office, occupation, business or employment c. Modernly-any defamatory act will be treated like libel: i. possibility of permanence ii. possibility of widespread dissemination will be treated as libel d. Procedural: i. unambiguous: judge to determine defamatory statement ii. two meanings: jury to determine defamatory statement e. Interpretation: i. Maj rule (Amer): There will be liability even though a minority of persons would hold that person up to distrust, hatred, contempt, ridicule or obloquy, And even if that minority is wrong thinking in the eyes of the community ii. English Rule: TARP test: there must be a loss of esteem in for the P in the general community and on the issue of right and wrong thinking, they use the TARP test (would the ordinary reasonable person hearing the statement hold the P up to hatred/distrust/obloquy) f. Accusations that are Not factual but are similar to the facts are a grounds for libel (there must be substantial truth) i. D doesn’t have to prove every fact, but must prove substantial portions of the statement and there may be variations in detail F. Who can be defamed 1) any living person a. have to know that it applies to the person who thinks they’re being defamed b. Standard: whether or no a reasonable person knowing the surrounding people would know that /understand the fictional person referred to p 2) business or corporation regarding its professional business dealings 3) group defamation a. large group-none can sue even though language is all inclusive 12 b. small group-SPLIT i. Allows cause of action only if the language is all inclusive ii. NY: allows cause of action even if language is NOT all inclusive F. Publication of Defamatory Statement 1) Defamatory statement must be published (ie communicated to a third person) and the speaker or publisher knew or should have known it was false NOTE: SOL does NOT apply Publisher: a. Original publisher: liability b. Re-publisher (repeater): liability just as if original publisher (also creates potential additional liability for original publisher) c. Secondary (newspapers) : NO liability; liability w/negligence (one who merely distributes or sells defamatory matter will not be liable if he can show not reason to believe that materials are defamatory) d. Single publication rule: an entire editiono f a book or periodical is treated as one publication (2 M copies of book=1 defamatory stmt) 2) Must be communicated to 3rd party other than P 3) Must be understood to be about P to be defamatory 4) Must either be published intentionally or negligently ` a. Intent: desire for another to hear or see i. Mass media: per se/automatic presumption of intent b. Negligent: foreseeable that another would hear or see i. Overheard communication c. Note: P cannot repeat the defamation to someone else G. Basis of liability: Who the standard applies to? 1) Strict liability (CL): statement is false 2) Actual malice: making the statement w/knowledge that its false or making the statement w/a reckless disregard of the truth or fasity 3) Negligence: statement made w/out actual malice H. Damages: 1) Slander: special damages (pecuniary) 2) slander per se: no special damages needed 3) Libel: presumption of general damages; no special damages need a. Punitive damages i. most states allow punitive damages for defamation if it can shown to have uttered w/actual malice ii. punitive damages can be given if statement was uttered about a private figure in a private concern w/out a showing of actual malice b. Retractions c. Injunctions I. Defenses 1) Consent-is an absolute defense to defamation 2) Truth-is an absolute defense to defamation 3) Privilege is an affirmative defense 3 Types of Privileges i. Absolute Privileges are a complete defense (not affected by a showing of malice, ill will, excessive publication, or abuse) a. Governmental Privileges (1) Judicial: witnesses, attorneys, judgens, jurors, and the parties (in action)… utterances need NOT be relevant 13 (2) Legislative: all federal and high state legislative members (on the floor or in committee)…utterance need NOT be relevant in hearings and MUST be relevant outside of hearings (3) Executive-president, cabinet officers, and department head…utterances MUST have relevance b. Spousal: husband and wife, allowed anytime anywhere…statements must be to the spouse, NOT about the spouse ii. Qualified Privileges-are conditional, narrow well-defined privileges and they can be lost. They apply only where D acts for certain well-defined purpose involving important social interests. They can be lost if: a. Malice exists: (1) Constitutional Malice: Actual malice-w/knowledge that the statement is false or making the statement w/a reckless disregard of the truth or falsity (2) Malice in a larger sense-intent to do harm, lack of good faith, ill will-use subjective test (.) pl’s proof of malice requires clear and convincing evidence (b) not only must you have a decision by the triers of fact by each individual reviewing court must make its own determination of malice b. Statement exceeded scope (1) D said more than was necessary (2) D made statements more widely than necessary (scope NOT exceeded if overheard by bystanders) c. Unreasonableness: the statement must be reasonable in the sense that the benefit in making the statement must OUTWEIGH the harm it causes (1) Protect personal interest (2) Protect common interest (3) Protect third party interest (one employer bad recommendation to another employer) (4) Other: credit reporting or fair comment on newsworthy event Privilege (interest protected) Nature of the Privilege Protection of the own interest of the publisher To make a defamatory statement when D reasonably believes the statement is necessary to protect his own interest. Most common situation: a. To recover goods: statement to detective, “John took my car” b. To collect money due; Statement to collection agency, “John owes me money” c. To defend oneself from defamation: statement upon being accused of stealing a car, “I didn’t steal the car, John did.” Protection of the interest of a third person Publisher reasonably believes that there is information that affects a sufficiently important interest of a third party. Most common situation: a. Statement to a prospective employer b. Statement warning a woman not to marry a man; e.g. he’s a convict c. Some states include credit rating Protection of a common interest between publisher and recipient Publisher reasonably believes that there is information that affects a important interest of a group which D belongs to. Look for legal, moral, or pecuniary relationship or obligation among members of group. Most common statement: a. Labor union, Club, Church Protection of Public interest Publisher reasonably believes that there is information that affects the public interest. Usually the statement must be made to someone who could reasonably be expected to take action to protect the public. a. Police and fire departments, Matters of public health, School issue… conditional privilege will be destroyed by: -excess publication -publication for an improper purpose 14 -actual malice OR -lack of belief in the truth of the statement iii. Constitutional Privileges-have been developed to protect freedom of speech and freedom of the press. Protection of statements is not dependant upon the truth of the statement. Free speech and 1st amendment issues are more important than the protection against defamation therefore where there is conflict the court will examine the balance (courts tend to support the Market place of Ideas) a. Common Law: (1) B. of L: strict liability (2) Damages: punitive; presumed except slander (3) Burden: D must prove truth b. Public Officials or Figure/Concern (public or private): (1) B. of L: actual malice: knowledge of falsity or reckless disregard for truth or falsity. NY Times v. Sullivan. D must actually entertain serious doubts about truth (St. Amant case) (2) Damages: presumed and punitives are available (3) Burden: P must prove Falsity (i) if plaintiff’s proof that statement is false and defamatory is preponderance of the evidence c. Private Figure/Public concern: (1) B of L: NO strict liability; malice or negligence based on jurisd. (2) Damages: Malice needed for presumed and punitive damages. Otherwise need showing of actual damages if negligence (3) Burden: Atleast 4 media defendant, P has burden of proving falsity d. Private Figure/Private concern: (1) B of L: strict liability or negligence-Gertz (2) Damages: presumed and punitives available w/out showing of actual malice (3) Burden: D must prove Truth-Hepps **3 Factors to determine if an individual is a private person v. public 1) Whether the person voluntarily thrust himself into the limelight 2) Whether or not it was a controversy or merely a manner of public concern 3) Whether or not they have heightened access to the media All of this info in chart form: 15 COMMON LAW PUBLIC OFFICIAL/PUBLIC FIGURE. PRIVATE FIGURE/PUBLIC CONCERN PRIVATE FIGURE/PRIVATE CONCERN BASIS OF LIABILITY (FAULT) Strict Actual Malice: Knowledge of falsity or reckless disregard for truth or falsity. N.Y. Times. D must actually entertain serious doubts about truth. St. Amant. State may establish its own standard as long as it is not liability w/out fault. Gertz This means minimum standard is negligence. Strict liability like common law or negligence like Gertz? See statement from Hepps below. DAMAGES (PRESUMED AND PUNITIVE) Presumed except for slander; punitives available. Presumed and punitives available. (Note: actual malice always present since required for liability.) Actual malice required for presumed and punitive damages. Otherwise need showing of actual damages--Gertz. Presumed and punitives available without showing of actual malice--Dun and Bradstreet. TRUTH AND FALSITY Ultimate burden on defendant to prove truth. P has burden of proving falsity--NY Times (See Hepps) At least for media defendant, P has burden of proving falsity. Hepps Ultimate burden on defendant to prove truth. A[T]he constitutional requirements do not necessarily force any change in at least some of the features of the common law landscape.@Hepps p. 908. Definitions: -public official: anyone who holds a position in a government with such importance that the public has interest; public official expanded into public figure: -voluntary public figure: if (1) P assumed a prominent role of special affairs in society (eg Paris Hilton) OR (2) P thrust himself to the forefront of a particular public controversy in order to influence the resolution of the issues involved (Smart’s parents) -Vortex public figure: P did not voluntarily seek the fame (but was voluntarily thrusted into the limelight) eg Scott Peterson’s family -private figure: non-public figure -Note: you can move from being a voluntary and vortex public figure into private figure (ie Monica Lewinsky) -Note: Private Individuals differ from public individuals b/c private individuals have 1) NO access to the media and 2) do NOT accept the risks of being public Other remedies: -Declaratory relief: brought Just to have a judicial determination that statement is false (NO damages) -Response: some states have response statutes which require public media to give P a chance to clear name -Injunctive Relief: -available after adjudication and publication continues -not available if amounts to a prior restraint -so, continued publication MUST stop once the matter is adjudicated, but previous publications can remain 16 V. Privacy * the interest protected in the right to be left alone * 4 causes of action: 1. Appropriation: Defined: use of another’s name, likeness, voice, or photograph for D’s own financial benefit. • Some states require D be engaged in a commercial enterprise (but some states allow a C/A for commercial-like enterprises like nonproffits) • P does NOT have to be famous (but if P is famous then P’s rights to publicity may be violated). • Voice: If the public CANNOT tell the difference then appropriation exists (eg. imitators). • Photograph used in a news story is NOT appropriation • NOTE: P does NOT have to prove actual/special damages; P receives nominal damages (b/c a right is vindicated). • NO actual malice standard b/c for your use not their pain (Zackini) • DEFENSES: permission/consent 2. Intrusion: Defined: the unreasonable invasion into the privacy/seclusion of another person. – Dodd • TEST: is the intrusion highly offensive to TARP (look at evidence and see if avg reasonable person who would be invaded would find it highly offensive). reasonable expectation of privacy) • Two part test: -intrusion into a private place, conversation or matter -in a matter highly offensive to a reasonable person • It can be an invasion of physical solitude, private areas, private affairs, physical invasion (eg invasion of picture, recordings, wiretapping, eavesdropping, looking through windows, prying into bank accounts, med records, mail, etc.) • NOT photos in public area. • Don’t need publication • No malice requirement involved • But there seems to be a privilege to gather newsworthy info of a public interest • DEFENSES: consent 3. Disclosure (public disclosure of private facts): Defined: unreasonable publicity given to another’s private life. • TEST: was publication of the private fact highly offensive to TARP. • ELEMENTS: -1-Has to be public: publication or public disclosure to more than one or two people (eg book, radio, tv, magazine, website, movie); Red Kimono movie disclosed fact of prostitution but that was buried in her past so it was disclosure) -2-Facts MUST be private (NO liability for facts on public record) – Florida Star. -3-Offensive to a reasonable person of ordinary sensibil. -4-Not a legitimate concern to the public 17 • There IS a constitutional privilege: If the matter is one of legitimate public interest, publication is privileged if made w/out actual malice. (ie NO liability) – (eg newspaper) • Time can bury a fact, once public now private • DEFENSES: truth is NOT a defense, consent 4. False light: Defined: publicity that unreasonably places another in a false light before the public. • TEST: was false light highly offensive to TARP; it MUST be outrageous. • TYPES: o Views that P does NOT hold, OR o Actions that P did NOT make • False light can involve false statements but usually involves true statements as well. • D MUST act with malicious-like conduct or reckless disregard when publicizing the false light (ie known or should have known) • (eg. jockey with a bulge in his pants) • DEFENSES: consent VI. Misrepresentation misrepresentation requires a false statement of fact; this tort protects the interest to reasonably rely on the good faith of others A. Prima facie case 1) false representation 2) appropriate basis of liability (intent, negligence, or strict liability) 3) intent to induce reliance 4) justifiable reliance -Right to rely on representation; AND -P must actually rely 5) damages *no causation (substituted by actual reliance) 1. False Representation of Fact: Misrepresentation requires a statement of fact that is false (written, oral, or conduct that amounts to concealment) (eg. turning back the odometer on a car) Traditionally, silence or failure to disclose is NOT actionable. a. Rest. 552-when silence can be a basis for fraud (1) Need to have: i. knowledge of the defect in the property ii. defect is not w/in fair & reasonable knowledge of the buyer iii. this knowledge can’t be discovered by reasonable diligence iv. then silence and failure to disclose constitutes an actionable fraudulent concealment (2) need a duty to disclose i. facts basic to the transaction, if he knows the other is about to enter into it under a mistake as to them 2. Basis of Liability a. Malice: (1) knowledge of the falsity of the statement OR (2) reckless disregard for the truth of the statement (ie entertaining serious doubts) This is the tort of FRAUD /DECEIT b/c of its moral quality of deception. 18 b. Negligence: failure to use reasonable care in ascertaining truth or falsity of the statement OR failure to reasonable care in accurate communication of the statement. SPLIT: o EngRULE: NO C/A & NO liability for negligent misrepresentation. o AmerRULE: negligent statements may be a basis of liability (but must be in business of supplying info). 2 Forms of Recovery 1. Personal Injury: R2d § 311 – liability extends to those ordinary people whose information causes harm to (a) the recipient of that information OR (b) 3rd persons who the actor should expect to be put in peril by the action taken. (eg. A physician who tells someone that they don't have cancer) (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the information or (b) in the manner in which it is communicated 2. Economic Loss: usually you need to be a person in the profession of providing information (doctors, surveyors, weigh-masters, lawyers, expert consultants, accountants, etc.). c. Strict Liability (Innocent Misrepresentation): Misrepresentation with NO knowledge of falsity and/or NO carelessness. (a good faith honest mistake) o limited to sale, exchange, or rental transaction (areas where rescission normally applies) o limited to out-of-pocket damages Only 20 jurisdictions apply strict liability as basis of liability for misrepresentation. 3. Intent to Induce Reliance 4. Justifiable Reliance For an action in misrepresentation there must be justifiable reliance on the part of P: a. Right to Rely: • A statement to be relied upon must be of fact, NOT opinion (vague or indefinite statements are usually considered puffing and NOT actual) o However, P can rely on an opinion with a CORE of fact • P can rely on any person that he has a fiduciary relationship with o Eg. Accountants, experts, lawyers, doctors, etc. • P can rely on statements that come from a person of superior knowledge (when he purports to convey a statement of fact) • Ex: Jewelry dealer who tells ignorant customer that a particular stone is worth $2,000 is liable because he purports to have superior knowledge as to the value of stones). • P can rely on an endorsement so long as it comes from a disinterested party (ie endorser does NOT have economic ties with the forum of the endorser). o There can be an action for negligence (ie failure to test or examine the good) NOTE A D CANNOT exploit a P’s gullibility (if P is particularly gullible/unintelligent, and D knows it, this is a special right to rely and D will be liable.) Note: the simplified 3 factors to determine justifiable reliance: 1) how close the relationship is between the parties 19 2) relative knowledge of the parties 3) equality of bargaining power NO Right to Rely: • No right to rely on an obviously false statement. • No right to rely on statements of opinion that lack fact (vague or indefinite statements are usually considered puffery/opinion and NOT actual). Ex. “This is the fastest car in the world.” • Statements of value, quality, and serviceablilty are usually statement of opinion (eg this is the fastest car). • Representations about the law are usually opinions. • Predictions as to the future are considered opinions o BUT statements about a present intention to act in the future are fact. • Statements in books are statements of opinion and there is NO liability for relying on them. (mushroom book case) o Exception: Aeronautical graphs are statement of fact. b. Actual Reliance – means that … • P heard OR read misrepresentation; • the misrepresentation was material (ie kind of thing TARP might rely upon in making the decision); AND • the misrepresentation played a role in Ps decision making. 5. 3rd person liability (applies to Negligence and Malice): Ultramares • NO liability to anyone not in privity of K with the maker of the statement o This applies to Malice and Negligence o This is still a good rule for deceit (form of misrepresentation based on malice) Credit Alliance • This applies to NEGLIGENCE (negligent misrepresentation) • Expands scope of 3rd person liability (analogous to proximate cause) • You can expand to potential Ps if D KNOWS about this P and P’s intention to use information. o Rest. §552 says this can be a GROUP of people o If D knows about this GROUP of people, this is enough. o D has an awareness of the purpose for this • There is some kind of connection linking D to P. o Usually this connection is some form of communication o Best connection is actual transmission of the false statement Citizens • There is liability to ANY foreseeable P 1. Damages: • MAJ: allows benefit-of-the-bargain damages8/• MIN: allows out-of-pocket damages