Ed v. Courier Journal Ed may bring various causes of action including (1) Intentional Infliction of Emotional Distress, (2) Negligent Infliction of Emotional Distress, (3) Intrusion Upon Seclusion, (4) Defamation, (5) False Light, (6) Public Disclosure of Private Facts, and (7) Negligence. VICARIOUS LIABILITY Ed will be able to bring these claims against the Courier Journal based on the actions of Ralph because Courier Journal will be vicariously liable for Ralph’s actions on the theory of Respondiat Superior. Respondiat Superior imputes liability to a superior, in this case the employer (Courier Journal), for actions of the employee as long as those actions were done in the scope of the employment. In this case the actions were quite clearly done in the scope of employment as they resulted in a publication in the paper. Thus the Journal will be liable for their own actions and the actions of Ralph in this fact pattern. IIED To prevail on a claim for IIED Ed will have to show that Ralph acted in an extreme and outrageous way, with the intent (or with recklessness) to cause severe emotional distress, and those actions caused severe emotional distress. The actions must be outside the scope of normal societal conduct. Here Ralph pretended to be a doctor to get info and then published a story about the tragic experience of Ed. Ralph also falsified info about Ed. These actions are bad, but I am not sure they amount to extreme and outrageous activities. Reporters often go undercover to get a story in the line of duty. Further, Ralph must have acted with intent or recklessness to cause distress. In this case, recklessness is more appropriate because the facts do not indicate intent to cause distress. Finally Ed must suffer severe emotional distress. If the actions were considered extreme and outrageous and if Ed suffered severe emotional distress then Ed may be able to recover for this intentional tort. NIED To prevail on a theory of Negligent Infliction of Emotional distress without any personal injury damages resulting from the actual negligence, generally the plaintiff must be in a “near miss” situation. The plaintiff must be in some zone of physical danger and as a result of a near miss must suffer emotional distress. That distress must also manifest itself in a physical way. Not enough facts here to proceed with this cause of action. There is no “near miss” situation. Intrusion Upon Seclusion To prevail on this cause of action Ed must demonstrate that Ralph intruded upon a reasonable expectation of privacy that would be highly objectionable to a reasonable person. In this case Ed was in a hospital room under severe stress and conditions. Ralph pretended to be a doctor in order to enter the room and gain the confidence of Ed. Ralph then got Ed to tell him things that he would probably be very embarrassed to tell others, especially the impotence thing, that can be very embarrassing in this day and age. I know with the Viagra craze it has become a bit more socially acceptable, but come on now. The real question here is whether or not Ed has a reasonable expectation of privacy in the
hospital room. If the room was shared with another patient then less likely, but if it was a private room and a private hospital then possibly. In any case, if Ed had a reasonable expectation of privacy then the intrusion would most definitely be highly objectionable to a reasonable person. Under these circumstances Ed would likely recover for intrusion upon seclusion. As a defense the Journal may try to state that the information was newsworthy or the like, but I will discuss that later on as newsworthiness is a defense to defamation and false light, but not a defense to intrusion. Defamation (the big one) To prevail on a cause of action for Defamation at common law Ed must show: 1. A defamatory statement. That is a statement that tends to lower his reputation or esteem in the community. Here the statements that Ed’s son was retarded and more so the statements that Ed beat his wife would likely be regarded as defamatory. Journal will argue that they are not defamatory because he is not at fault in those cases and therefore his reputation should not be lowered. People may feel sorry for him, but should not lower his reputation. 2. Of and concerning the Plaintiff. In this case the statements are clearly about Ed as the facts indicated he was named. 3. Publication to a third party. The statements must be communicated to a third party. In this case they were published in the paper so this element is satisfied. 4. Damages (maybe) – Because this is an action for libel (that is written or more permanent defamation) general damages will be presumed and Ed need not show special damages. If the cause of action was for libel, and was not one of the libel per se categories, then Ed would have needed to show special damages. First Amendment Concerns – First of all they will mention that truth is an absolute defense. This is correct but only applies to the true statements about he symptoms and not to the defamatory statements. Courier will likely raise First Amendment Issues as a defense as well. First Amendment concerns are raised when the statements concern a matter of public concern and/or when the plaintiff is a public official/figure. Here, Ed is probably not a public official of figure because he did not voluntarily inject himself into the limelight, but the matter is probably one of public concern. Weapons use and testing by the government is a matter of public concern. Therefore, Ed will have to show falsity as to the statements at hand. The statements are false so he will likely be able to do this. In addition, there is an element of fault that must be proved. In a case like this one, the journal will only be liable if Ralph was negligent in publishing the false statements. If Ed was a public official then he would have to show actual malice on the part of Ralph which could probably not be shown here, but it is likely that Ralph was negligent. The facts state that Ralph had no reason to think the statements were true, basically he made them up because he felt entitled to “poetic license.” Likely this would be the requisite degree of fault (negligence) and Ed would be
able to recover. In order to get punitive damages, however, Ed would have to show actual malice. False Light To prevail on a claim of false light Ed must show that Ralph or the Journal misrepresented facts that subjected Ed to a false light, there was publication or dissemination, and that false light must be highly objectionable to a reasonable person. Here, the false light facts would be similar to those discussed above for defamation, that his child was retarded and that he beats his wife. The publication requirement here is different than in defamation in that here it must be disemeenated to a large number of people. In this case it was published in the paper so that requirement is met. Finally the statements must be highly objectionable to a reasonable person. Clearly met here. Again the Journal will say the article was newsworthy and thus there is a higher level of fault required. It is unclear if that level is actual malice or negligence. The supreme court has not given us clear guidance however it is unlikely that the level will be greater than for a defamation action thus probably need negligence. If need to show actual malice then must show that the Journal or Ralph actually knew the statements were wrong or acted with reckless disregard for truth or falsity. The facts do not indicate that he actually knew they were wrong but it does seem like he made them up for poetic license. It is a close call on the issue of actual malice but again probably negligence is all that is required. Public Disclosure of Private Facts This cause of action would be in regard to the statements that were true. More specifically, revealing his symptoms and that he is impotent. Because the true statements were not actionable under defamation or false light, this is where they would be. To prevail, Ed must show that private facts were disclosed to the public and that disclosure of private facts would be highly objectionable to a reasonable person. Like intrusion upon seclusion, Ed must have a reasonable expectation of privacy as to those facts. Here the facts were clearly disclosed to the public as they were published in the paper. The revealing of those facts do seem highly objectionable to a reasonable person. The defense here may be that Ed volunteered those facts so he basically consented by making those facts public himself. But, he only revealed those facts because of the fraudulent misrepresentation perpetrated Ralph. Ralph pretended to be a doctor. Ed will likely recover on this cause of action. Negligence Ed can also sue based on common negligence. Under this theory, if a party breaches a duty of due care, and cause damages, then they are liable. In this case Ed can claim that Ralph acted unreasonably in posing as a doctor and publishing the story. As a result, Ralph and the Journal should be liable for any damages suffered by Ed that were the proximate cause of those actions. Because I am running out of time and this is clearly not a question testing us on general negligence I will write no more.
Thanks for reading.