Tort II --Look on exam for every tort I. Intentional Torts A. Battery -harmful or offensive physical contact upon another 1. Cases i. Garrett v. Dailey (boy pulls chair out from under woman) ii. Fisher v. Carrousel Motor Hotel a. Kicked out from restaurant because black b. Touched plate, extension of a person c. Why not iied 1) Not outrageous conduct at time 2) No physical manifestation 3) Might have been hurtful but not severe 2. Elements i. Voluntary intentional physical act by the defendant • Intent = Defendant must have knowledge of the substantial certainty that harm would occur • Standard a. Reasonable 5 year-old --objective b. What he knew within his experiences --subjective c. Mixed subjective and objective standard 1) What party knew/should have done 2) Example: i) Throw a chair into a crowded room substantial certainty that harm will occur ii) Throw a chair into a room w/one person NOT sub. certainty should be negligence d. What he did not what he should have done ii. Harmful or offensive physical contact on plaintiff • Plaintiff = plaintiff’s person includes extensions (i.e. plate, cane) • Harmful or offensive to the reasonable person, unless you know the person is sensitive iii. Causes harm -can have physical harm or emotional harm which stems from offensive bodily contact iv. Can have transferred intent v. Punitive damages are appropriate when willful & malicious conduct by defendant B. Assault -reasonable fear of imminent bodily harm, physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm 1. Cases: Picard v. Barry-Buick, Inc. 2. Elements i. Voluntary act (Intent) ii. Puts plaintiff in apprehension iii. Of imminent threat (has to be immediate, otherwise see IIED) iv. Of offensive/harmful contact v. Can have transferred intent . Why plead both? i. May have problems with elements of one and give jury choice ii. May get one or the other iii. May be easier to prove one of the other C. False imprisonment -unlawful restraint on freedom of movement 1. Case: Lopez v. Winchell’s Donut Home 2. Elements i. Voluntary act (Intent) ii. To restrain/confine a. Can be words b. Threats of physical force c. Unlawful restraint (threaten to kill) If restraint is sufficient look to: 1) Actual/apparent physical barriers 2) Overpowering by force of submission by force 3) Threats of physical force 4) Other duress 5) Asserted legal authority d. Can’t be moral compulsion to stay iii. Physical liberty of another (freedom of PHYSICALLY moving) iv. Without authority (KEY) v. Can have transferred intent vi. Duration doesn’t matter, only goes to damages 3. Look for: i. Unlawful restraints -coercion, threats, etc. ii. Restricts physical movement -takes keys (depends on circumstances, if live together may not be enough), clothes, shoes, or tie down 4. OCGA 51-7-60&61 -for shop lifters i. Can detain if reasonable belief ii. If sensor goes off...is reasonable belief iii. Safe harbor for store owner action IF reasonable iv. Limitations on store actions D. Intentional infliction of emotional distress -intentional or reckless outrageous conduct with causal link between conduct and distress and causes severe emotional distress 1. Cases i. Womack v. Eldridge -dragged into case to “suggest” another defendant, no physical impact required ii. State Rubbish Association v. Siliznoff (this was one of the first cases to create this action, it’s a new intentional tort) -threatened with physical violence if he didn’t pay Association iii. Hustler v. Falwell 2. Elements i. Voluntary act (Intent) • Intent -substantial certainty that consequences will flow from action • Look at what defendant did...was there substantial certainty, depends on moral weight of consequences • Some jurisdictions use reckless behavior (80%) v. sub. certainty (90%) ii. Extreme/outrageous/offensive conduct (ask first) • Offending against the generally accepted standards of decency and morality • May be outrageous/offensive at lower threshold if: ⇒ Continuos in nature ⇒ Directed at a certain type of plaintiff (sensitive, i.e. pregnant) ⇒ Committed by a certain type of defendant (i.e. common carrier or innkeeper) iii. Resulting in severe emotional distress (ask first) • Must have causal link between conduct and distress • But for and proximate cause iv. Third party iied a. Must be present during outrageous conduct b. Closely-related to person receiving outrageous conduct c. Defendant must know that third party is present and intends (or substantial certainty) to distress the third party v. Jurisdictional split on physical impact -GA & CA require physical impact or manifestation vi. With public figure need all elements PLUS actual malice by a journalist a. Knowledge that it was false b. OR with reckless disregard as to whether it was true or not c. 1st Amendment political speech and freedom of press plays and adds the malice element (NY Times v. Sullivan) iv. Hard to have a group claim with iied a. i.e. Rocker situation b. Problem is with intent to do the act that harmed a SPECIFIC person is lacking v. NO TRANSFERRED INTENT! 3. Why not expand assault? i. Restatement was leaning towards iied ii. Deterrence, if rendering contract invalid then no repercussions for plaintiff who acted so bad iii. Physical Manifestation is required in iied, so it goes beyond the duress in the contract claim iv. Minds are damaged and threat not immediate, can’t get assault and battery so need iied v. Fills in gaps between intentional torts 4. Comes up in employment cases i. Sexual harassment ii. Racial discrimination 5. Negligent iied developed in 1960’s in some jurisdictions pre-dated emotional harm cases from 1st semester E. Trespass to land 1. Voluntary act (Intent) 2. Without authority 3. Physically invades owners exclusive possession of property F. Trespass to chattels -possession of a chattel (can be an intangible item, i.e. a computer network) affected (not ownership) for a period of time with damage to chattel, no nominal damages allowed 1. Cases i. CompuServe v. Cyber Promotions ii. Hamidi v. Intel -1st Amendment not an excuse, still TTC 2. Elements of trespass to chattels i. Restatement 218 a. Dispossess other of a chattel OR b. Chattel is impaired as to condition, quality, value OR c. Possessor deprived of use of chattel for sub. time OR d. Bodily harm is caused to the possessor OR e. Harm is caused to some person or thing in which possessor has a legally protected interest iii. Kurt’s elements a. Voluntary act (Intent) b. Without authority c. Interferes with the chattel by: 1) Intermeddling -Intermeddling/impairing with the chattel’s value, quality or condition (actual damages must be shown) 2) Dispossession -Depriving owners use of chattel for a substantial amount of time (no actual damages need be shown, can get rental value) 3) Causing harm to anything in which the possessor has a legally protected interest d. Must have substantial and actual damages e. Can have transferred intent G. Conversion -tort against ownership when someone takes total control or some exercise of some dominion and control over it (i.e. treat others property as your own), so severe as to require the defendant to pay the full value, can get nominal damages (and others) • If you have substantial and actual damages, then it can be either conversion or trespass to chattels • Restatement factors ⇒ Dominion or control ⇒ Duration of loss ⇒ Bad faith of owner’s interest ⇒ Degree of harm (has to have physical damage for TTC) ⇒ Inconvenience/expense ⇒ Look at damages (if no sub. & actual then has to be conversion) 1. Cases i. Ford v. Rouse -kept keys to car ii. Pearson v. Todd -photo copies of papers, if employees were convicted of conversion then the reporters would have been too 2.. Elements of conversion i. Voluntary intentional exercise ii. Dominion or control (if you had possession and were asked to relinquish, if you don’t, then its conversion) not all juris require this iii. Over a chattel iv. Of another v. Damages for a. Damage to chattel or loss of use b. Nominal damages allowed, don’t have to have actual damages c. Replevin -get actual property back not money vi. NO TRANSFERRED INTENT 3. Information is private property (therefore protected) i. Only if it has a literary, artistic, etc. value ii. Must also have a cost to assemble iii. Sold on open marketplace iv. Copyright laws were established for this 4. Conversion applies to personal property and intangibles that reduced to physical form NOTES ON INTENT • Each act must be with intent (or substantial certainty) to do the act • Intent -voluntary willing act which may cause harm or with substantial certainty cause harm • Substantially certain that the consequences of the tort-feasors act(s) that the harm will occur, not from actor’s perspective but from a third person standard • Transferred intent -intent to do act but harm to something/someone else Transfer across tort as well as people Not iied and conversion H. Difference between intent and negligence • Negligence, must prove ⇒ Duty -the act created the duty ⇒ Breach -did he act reasonably (spec. circumstance, custom, Hand Formula, Res Ipsa, etc) ⇒ Causation ◊ But for ...scientific link, if two or more possible causes look at substantial factor ◊ Proximate...legal cause, was it unforseeable, too remote, do we want be to be liable for hugging someone ⇒ Damages • Intentional Tort ⇒ Intent to cause harm, Must intend or have substantial certainty that results would occur or would follow the act ⇒ Harm (1 of 7) • Practical Difference between negligence and intentional harm ⇒ Statute of limitations (procedural) ⇒ Damages -punitive and nominal awarded in intentional, rarely in negligence ⇒ Defenses (no contributory in intentional tort) ⇒ Insurance (3rd party recovery) • Blurs lines between ⇒ Substantial certainty, substantial factor, forseeability ⇒ Must draw line of what is negligent (lower risk of injury) and was is intentional (higher risk of injury) ⇒ Can argue both Negligence -broad but must prove causation, only liable for foreseeable Intentional torts -have to have intent but built in causation, liable for almost anything that happens I. Prima Facie Tort -Porter v. Carriers (minority) BONUS POINTS • Hard to fit into negligence (i.e. no duty) • No strict liability (no product or ultrahazardous) • Doesn’t fit into intentional tort categories • Prima Facie Torts -intentional tort that works like negligence, doesn’t fit into category of the seven intentional torts, eliminates the categories, recognizes intent like fault in negligence ⇒ Intentional act ⇒ Intent to cause injury ⇒ Injury caused by act ⇒ No justification for act based on intent (not fault) • Only MO and NY recognize prima facie torts J. Defenses to Intentional Torts (affirmative defenses) 1. Consent i. Plaintiff consents to contact, etc. ii. What did plaintiff consent to? a. Must be view narrowly b. Sports, operations, etc. -looks at rules, what is expected 2. Self-defense i. Apprehension of one of the torts occurring to you ii. Can use REASONABLE force 3. Defense of others -jurisdictional differences i. Defendant must have only a reasonable belief to stop the plaintiff ii. A tort actually has to be occurring 4. Defense of property i. Reasonable fear of specific tort ii. Reasonable force 5. Private Necessity -If benefit to myself (defendant) outweighs loss to plaintiff i. Cases: a. Vincent v. Lake Erie -Boat owner ties boat to harbor because he doesn’t want to go out into a storm b. Ploof v. Putman -Harbor master cut off line and created damage ii. This defense exists, but have to pay compensation for damage (use and harm to property only, no for unforseeable harm) iii. Can’t get an injunction against it iv. Conflict between uses of property v. Don’t worry about public necessity 6. Arrest for probable cause 7. Justification II. Other Torts A. Defamation -how third person reacts to statement 1. Cases i. Romaine v. Kallinger -called a person a junkie ii. Matherson v. Marchello -may leading statements that person has unfaithful wife and is a homosexual and slander v. libel damages in broadcast iii. Liberman v. Gelstein -Slander per se iv. Burnett v. National Inquirer -Retraction 2. Types of defamation i. Slander -spoken ii. Libel -written 3. Elements i. Defamatory communication was made -assumes falsity a. Defamatory language that damages a person’s reputation b. Inducement -CONTEXT that makes statement defamatory (directed toward plaintiff) c. Colloquium -how plaintiff is referenced (how person is referred) OF & CONCERNING • A statement can be taken out of context and create a defamatory innuendo d. Innuendo -message received by listener • What is the conclusion that is made by the context of what is said? • Must put innuendo in a larger context of the community in which this person is judged 1) Standard -what right thinking people would receive from statement 2) Exception -when someone would find it offensive e. One meaning or more than one meaning, who decides? 1) If reasonable that only one meaning could be taken, then can be matter of law -clearly defamatory or clearly not defamatory as a matter of law 2) If reasonably susceptible to more than one meaning then jury should decide f. What is defamatory? 1) Prosser & Keeton -higher 3rd person standard a. False and injures reputation OR b. Exposes to hatred, contempt or ridicule OR c. Subjects to a loss of the good will and confidence in which he/she is held by others d. Someone would have been offended 2) Restatement -a defamatory communication is one that “tends to harm” the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him (lower standard, community reasonable person standard) ii. Publication a. Must be made to a third person b. Look at intent to publish not to defame c. Primary publisher & republisher are liable -any individual participating in the publication (TV, newspaper, author, speaker) or republisher (“according to Time Magazine”, that person is also liable) d. Secondary publisher (exception to b) is liable if she should have known that content was defamatory -distributor of newspaper, player of tape iii. Strict liability -assumes malice iv. Damages a. Libel -written, damages are presumed Radio, TV internet arguable that its libel Look at: How permanent How broad is dissemination How premeditated b. Slander -spoken, plaintiff must show actual (pecuniary) loss c. Slander per se -pecuniary losses implicit, presumed damages when slander is about 1) Injures business, trade or profession 2) Loathsome disease 3) Crime involving moral turpitude 4) Serious sexual misconduct 5) Categories of slander per se can help to establish whether or not defamatory communication in first place 6) OCGA 51-5-4 -TV/RADIO IS SLANDER, must have actual damages d. Why is there a split when it comes to damages? 1) Libel -audience can be larger and lasts longer 2) Slander -smaller audience, temporary 3) Blurred with advent of mass communications 4) TV and radio are libel not slander i) Who should be liable a) Speaker b) Radio Station 1] OCGA 51-5-10 for TV and Radio 2) Only liable if you don’t exercise due care (negligence standard) ii) Are you liable for someone who is know to be outrageous? a) Show due care b) Use 1) Delay 2) Sign release, need to get indemnification 3) Things to minimize the risk c) Re-broadcasts NOT due care v. Defenses a. Truth -falsity is presumed b. Privileges (Privileged Communications OCGA 51-5-7) 1) Absolute (OCGA 51-5-8) 2) Qualified (OCGA 51-5-9) 3) Common Interest 4) Privilege can be exceeded by i) Embellishment ii) Editorializing iii) Malice -CL (ill will) is different from NY Times c. Fair & accurate reporting of public record 1) Restatement 611 -fair summary of something open to the public 2) Fair summary/statement of public proceeding or official action or meeting, expanded to contain statements from public officials statements made by government d. Retraction -not an admission of guilt only lowers damages 1) 51-5-11 -print procedures 2) 51-5-12 -TV/radio procedures 3) Plaintiff must seek retraction 4) Defendant mitigates damages if retraction, no punitive 5) Burnett v. National Inquirer -didn’t fit into “newspaper” definition for retraction Defenses a-d are common law and have been amended by statute e. Constitutional (1st Ad free speech/press) 1) Cases i) NY Times v. Sullivan -standard for media ii) Gertz v. Robert Welch, Inc. -public figure iii) Foretich v. Capital Cities -public figure 2) NY Times Standard i) In addition to regular of defamation ii) When a media defendant criticizes a public official/figure iii) Must show ACTUAL MALICE Knowledge of falsity or reckless disregard for truth iv) Dissents -agreed with results but think the privilege should be broader a) Black -public concern: anyone should be able to say anything, ABSOLUTE PRIVILEGE b) Goldberg -conduct of public figure/public concern is unconditional (but if private concern, is NOT unconditional, 1st Ad doesn’t apply) Nature of Communication Public Concern Private Concern Nature of Plaintiff Public Official/Figure Common Law + malice NY Times v. Sullivan Open question NY Times probably applies, Note 3 pg 997 Private Figure • No strict liability • Presumed damages & punitive damages then Plaintiff must show actual malice No constitutional protection/defense Dunn & Broadstreet v. Greenmoss 3) Private figure i) Wanted less protection of speech because protecting private citizen ii) No strict liability -Deferring to states iii) No punitive/presumed damages unless actual malice standard is used iv) Court says private figures, allowed to make reasonable public replies to those accusations 4) Public official/figure -Butts case (local interest), Walker case i) Factors to look at for public figures a) Plaintiff had access to channels of effective communication b) Plaintiff voluntarily assumed a role of special prominence in the public controversy c) Plaintiff sought to influence the resolution or outcome of the controversy but could be 1] Defending oneself 2] Using clout d) Controversy existed prior to the publication of the defamatory statement e) Plaintiff retained public figure status and the time of the alleged defamation ii) Nature and extent of Plaintiff’s participation in that particular controversy to justify “public figure” status iii) NY Times applies iv) Seeks limelight 5) Public concern -court proceeding, newsworthy, broad interest 6) Private concern -sexuality, eating habits, purchases, etc. 7) Limited public figure -Richard Jewel f. Other Constitutional defenses 1) Opinion -Milkovich v. Lorain Journal CO. Not a defense, NY Times was not intended to create a safe harbor for opinions 2) Neutral Reporting-Edwards v. National Audobon Society i) If media is simply engaging in neutral reporting, its privileged and protected by 1st Amendment ii) Neutral Reporting a. Newsworthy b. Responsible well known source (mirror of what someone said includes interviews with private person/corporations) vi. Group Defamation a. Group must be small and specific b Very hard to bring a class action c. There are statutes in some jurisdictions vii. Product Defamation a. Statutory b. But could also have company claim....innuendo is that they put out bad products c. Corporation has standing (not each SH) but different for closely held corporation (group defamation) viii. Service Provider Liability a. Cases 1) Cubby v. Compuserv 2) Stratton Oakmont v. Prodigy b. If have editorial control -liable c. If have no editorial control, pure platform -not liable new & emerging defense to protect the neutral platform d. More control, more liable B. Privacy -protects aspects of self (different from body, mind, personal and real property) 1. General Notes i. Recent innovation before no blanket protection ii. 1905 -GA Supreme Court recognizes the tort of invasion of privacy iii. Not absolute, can create through contract/trust, piece mail protection iv. Causes of action a. US Constitution only protects reproductive rights b. State Constitution may afford more types of right to privacy (i.e. GA: Pavesich -general right of appropropriation/right to publicity; Powell -general right of privacy within home, to be left alone, commit sodomy) c. State Statutes but 1st Amendment of Constitution can not be violated (Free Press), it out weighs state based right to privacy d. Common Law -can not be brought as an initial cause of action 2. Four types i. Public disclosure of private facts a. Cases 1) Haynes v. Alfred Knopf, Inc. 2) The Florida Star v. BJF b. Elements 1) Highly offensive (to a reasonable person) 2) Not newsworthy or of public interest 3) Private 4) Public disclosure 5) Constitutional defense for media defendant i) Media defendant (ONLY) ii) Prints truthful information (must be a revelation) iii) Lawfully obtained iv) Must be close fit between compelling state interest of the highest order and the means of protecting the state interest to punish c. State can’t regulate if (Daily Mail Test) 1) Lawfully obtained 2) Publicly available 3) Would lead to self-censorship 4) If allowed to regulate, then statute must be narrowly tailored to a state interest of the highest order ii. False Light a. Case -Cantrell v. Forest City Publish Co. -follow up story on family, reported that they were poor • Not defamation (true) or public disclosure (newsworthy) b. Elements 1) Defendant actions have placed plaintiff in a false light 2) Not true or misleading but not defamantion 3) Raise with defamation 4) Strict liability 5) Statue can create action 6) Constitutional defense for media defendant i) Plaintiff must show actual malice ii) If story is of public interest iii. Intrusion a. Cases 1) Nader v. GM 2) Galella v. Onassis -keep photographer away from her and her kids 3) Desnik v. American Broadcasting Co. -allowed camera/reporter in just not at that site at that time b. Elements 1) Intrusive i) Did plaintiff have reasonable expectation of privacy? ii) DC Test a) Reasonable expectation of privacy b) No justification of public purpose not all juris. have b) 2) Reasonable designed to elicit information which would not have be available through normal inquiry/observation) 3) Constitutional defense i) Not absolute ii) 1st amendment limits scope of injunctions 4) Not intrusion if you invite in (but see Food Lion, when hired as an employee, owe duty to employer so was a trespass) iv. Right of publicity -right to make public use of one’s appearance & likeness a. Cases 1) Pavesich v. New England Life Insurance Co. -a property-like right in your likeness 2) Powell v. The State -a liberty right to be left alone unless it hurts some or if government has legitimate concern 3) Midler v. Ford Motor Co. -appropriation of the attributes of one’s identity includes rights in distinctive voice (argue both) 4) White v. Samsung -Missappriation of their celebrity identity value (argue both) 5) Zacchini v. Scripps Howard -rights of publicity = rights in the act, if hadn’t shown entire act might have had a 1st Ad. defense b. Elements 1) Defendant’s appropriation 2) Of plaintiff’s name or likeness 3) For defendant’s own commercial use 4) Court’s split on whether or not it descends at death c. If you want to use someone’s likeness you must contract with them (waiver) d. Limits on appropriation and rights of publicity 1) By freedom of speech/press 2) Public figure (parody) 3) Newswortiness v. Origin under GA Constitution a. Principal of natural law b. Expect to have privacy in civil society c. Took it out of the due process clause (no deprivation of liberty or property w/out due process of law) vi. General notes a. Right of publicity has two roots 1) Privacy -treat like personal property 2) Misappropriation treat like property b. Right of publicity but some call misappropriation c. What has been taken? 1) Narrow, Pavesich -personal right 2) Broad, Midler & White -property right C. Economic Torts 1. General Notes i. Con/Tort Relationship ii. Protection of information iii. Recover for economic harm 2. Misappropriation -taking someone’s efforts, freeriding off of one’s efforts i. Cases a. INS v. AP (not good law because of Erie Doctrine) b. NBA v. Mortorola ii. Rights in information --creates a property right in the sweat of your own labor which falls outside of copyright law iii. Theory of unfair competition 3. Misrepresentation i. Case -Ollerman v. O’Rourke ii. Elements a. Misrepresentation of material fact b. Scienter 1) Intentional misrepresentation i) Intent ii) Misrepresentation of material fact iii) Actual reliance iv) Damages 2) Negligent misrepresentation i) Negligence (duty, breach, causation, damages) ii) Actual reasonable reliance iii) Didn’t know if the fact was true or not but said they did and was wrong iv) Duty to investigate on seller -must prove rest of negligent elements as well 3) Strict Liability -Restatement i) Sale/rental/exchange ii) If misrepresentation, get difference in value 4) Duty to disclose -Restatement 551 i) Fiduciary relationship ii) Step misleading interpretation iii) Information learned later that could lead to misleading iv) False rep. without expectation that it would be relied on but finds out other will rely on v) Basic facts to transaction if other is known to enter under mistake vi) Fails to disclose intentionally vii) No negligence cause of action, Credit Alliance governs, must be a) For particular purpose b) Known party c) Conduct linking relying party c. Intent to induce behavior d. Actual justifiable reliance e. Damages flowing from reliance f. Can get punitive damages unlike contract action 4. Interference with Contract i. Cases -Imperial Ice Co. v. Rossier (covenant not to compete) ii. Elements a. Defendants act -steps taken to induce breach (breach not required) b. Knowledge and intent to interfere with contract c. Adversely affecting d. Plaintiff’s contractual rights e. Defenses 1) Didn’t know about contract 2) Justified 3) Privileges -health, safety, good moral 5. Interference with Prospective Economic Advantage i. Cases a. Della Penna v. Toyota Motor Sales b. Adler v. Epstein c. Leigh Furniture v. Isom -most cases have 3 parties ii. Elements a. Defendants act -steps taken to interfere b. Knowledge and intent to interfere c. Adversely affecting d. Future economic advantage 1) allow for recovery of pure economic harm of another tort 2) Look for another tort e. Did defendant do something harmful/wrongful? 1) If not privileged then a prima facia tort (2 juris only) i) Mirror image of negligence (intended to do wrong then liable) ii) Duty, intent to act, caused harm 2) Restatement 767 (only 4 juris) i) Nature of conduct ii) Actor’s motive iii) Interest of the other that’s interfered with iv) Interests sought to be advanced v) Proximity or remoteness of the actor’s conduct to the interference vi) Relationships between the parties 3) Oregon Test (majority? not all juris have accepted) i) Improper purpose ii) Or used improper means 4) Some harmful things could be just normal business activities so privilege gets them out of trouble with a primia facia tort i) intent to get out of contract v. intent to do harm ii) Ok to get out of contract but must do it the right way iii) Must balance stability of contract v. we like competition, and ok to look out for self 6. Slander of Title -privilege/defense i. Case -Horning v. Hardy -used as defense for interference, it’s a privilege to defend your land ii. Elements a. Claim party did not have valid title to the land b. Disparagement of the quality of the property (not necess. real) a.k.a. trade libel, slander of goods c. Must have malice d. Special damages to plaintiff 7. Interference w/an expectancy (minority, most juris won’t recognize, GA won’t) i. Case -Harmon v. Harmon ii. Elements a. Legally protected right/expectancy b. Intentional and wrongful interference c. Causing damage to plaintiff D. Torts that Arise out of Litigation 1. Malicious Prosecution i. Cases a. Skaggs v. Graves -bad check case, criminal b. Friedman v. Dozorc -civil ii. Elements a. Prosecution instituted or continued by the defendant against the plaintiff b. Termination of the proceeding in favor of the accused plaintiff c. Absence of probable cause of the proceeding (for the initial suit) d. Malice -defendant acted improperly e. Damages depends on initial case: 1) Criminal -damages are general 2) Civil -split i) maj -damages are general ii) min -damages are special a) Court fees and attorneys fees not enough b) Lost job/profits are special c) Why have special requirement 1] Legislature should do it 2] People fearful of loosing don’t want chilling effect 3] No end to litigation 4] BUT most juris are gen. 2. Abuse of Process i. Some filing of a claim or abuse of litigation process but not full proceeding ii. Elements a. Ulterior motive/purpose b. Or improper act in bringing the process c. Wasn’t just to get justice served iii. Georgia a. OCGA 51-7-81 --abuse of litigation preempts common law b. OCGA 51-7-83 --Remedy c. If no damage beyond costs 1) OCGA 9-15-14 for fee shifting if complete absence of a justiciable issue of law or fact 2) Rule 11 3) Exception -good faith effort to establish new theory of law III. Section 1983 -Constitutional Torts Level of government the tort-feasor Suing the entity in State Court Suing the actor in State Court Suing the entity in Federal Court Suing the actor in Federal Court Federal Absolute immunity Absolute immunity Federal Tort Claims Act Bivens Action State Waiver of state immunity for some claims, see OCGA 50-21-24 Waiver of immunity for nondiscreetionar acts OCGA 50-21-25 11th Amendment Immunity § 1983, with qualified immunity but absolute immunity for some actors (judges and prosecutors) Municipal/Local Qualified immunity for nondiscreetionar acts Qualified immunity § 1983 violation for formal policy that indicates “deliberate indifference” No good faith immunity § 1983, with qualified immunity A. Tests 1. Suing municipal/local entity in Federal Court i. Must show violation ii. Had a policy or procedure that showed deliberate indifference to violations iii. Strict liability 2. Suing Federal, State or Municipal/Local Actor in Federal Court i. Acting under color of law ii. Deprivation of Constitutional right a. Enumerated rights 1) Bill of Rights 2) Strict liability b. Substantive Due Process -Life, Liberty, Property 1) Shocks the conscious 2) Intent to do harm 3) Deliberate and purposeful 4) Must prove actual damages 5) Can have punitive damages c. Procedural Due Process 1) Is there other procedural remedies? 2) Can take away and have a post-termination hearing 3) This is the appeals process B. Cases 1. City of Montrey v. Del Monte -Right to jury trial under § 1983 matter of law 2. Daniels & Davidson -Negligence is not enough for a deprivation of a substantive due process violation 3. County of Sacramento v. Lewis -reckless disregard/gross indifference is not enough for a substantive due process violation 4. DeShaney v. Winnebago County -inaction is not enough for a substantive due process violation