Torts Outline Semester 2

Torts Outline Semester 2 Brian Pedigo Table of Contents: VICARIOUS LIABILITY (VL) .......................................................................................................... 2 STRICT LIABILITY (SL) ................................................................................................................... 4 NONFEASANCE (NF) ........................................................................................................................ 6 DUTY TO CONTROL (PROTECT FROM) 3 RD PERSONS ........................................................... 7 CONTRACT AND DUTY (Duty to Perform Promises) ................................................................... 8 NUISANCE......................................................................................................................................... 10 PRODUCTS LIABILITY (PL) ......................................................................................................... 11 SETTLEMENT AND APPORTIONMENT .................................................................................... 13 GOVERNMENT ENTITIES AND IMMUNITY ............................................................................ 15 DEFAMATION (DIGNITARY TORTS) ......................................................................................... 17 WORKERS COMPENSATION (WC) ............................................................................................. 19 1 Torts Outline Semester 2 Brian Pedigo VICARIOUS LIABILITY (VL) The doctrine of Respondeat superior (VL) can hold employers liable for the torts of their employees within the scope of the employment. An employer is generally not liable for punitive damages against the employee. Also, an employer is generally not liable for intentional torts by servants. The exception to the general rule is when the employer authorizes or encourages the contact. 2 Categories of Justification for VL: 1) Control (more fault weighed here) 2) Risk-distribution a. One of the public policy reasons for VL is to spread costs, using the employer’s insurance so that the innocent victim may be compensated (risk distribution). Elements to find VL: 1) Employer / Employee Relationship 2) Within the scope of employment a. Act done during employee’s work? i. Note: it does not matter if the employee was not supposed to be doing the particular act he was doing b. Outside course of employment? (time, place, space, circumstances) c. Arise out of employment? (qualitative) Within scope is a question of fact for the jury. A detour (minor deviation in time & geographically) is within the course of employment, while A frolic (personal errand) is outside the course of employment Independent Contractor: typically the employer is not liable; however, the two broad exceptions are: 1) inherently dangerous activity (eg. blasting) 2) nondelegable duty (because of public policy – eg. duty to keep business safe for customers) a. negligent selection of independent K, in which case liability for employer’s own negligence. General rule: the less independent from employer, the greater chance of being an employee If an employer is benefited by the employee travel, then the employer is responsible for any accident incurred during the commute. This is the dual-purpose exception to the Going & Coming Rule (Hinman) Going & Coming Rule: employment relationship is suspended from the time the employee leaves until he returns or that in commuting he is not rendering service to his employer; the 2 Torts Outline Semester 2 Brian Pedigo exception is where there is a benefit to the employer; another exception is when the trip involves special hazards. Intent Rule: the employee must have formulated an intent to act in furtherance of the employer’s business; also, the intent must be coupled with a reasonable connection in time & space with the work in which he should be engaged in order to be within the scope of employment. Collateral Negligence Rule: employer is not liable if the manner was improper or the risk of harm is not inherent in or normal to the work, and the employer has no reason to contemplate the contractor’s negligence. (Otero) Apparent Agency & Actual Agency: if you present something or someone as your agent (ie. they are working for you) you can be held vicariously liable for their actions. (O’Banner v. McDonalds) Other forms of VL: 1) Partnership – both partners liable 2) Joint Enterprise – where agreement, common purpose, community of interest, and equal right of control. 3) Concert of action, conspiracy, aiding and abetting (Rozales, Dudley) 4) Negligent entrustment of a vehicle (or any car accident by family member) 5) Imputed Contributory Negligence – family members, bailments Distinguish facts where employer is negligent: 1) Failure to control acts in employer’s presence 2) Negligent hiring of employee VL Scope of Employment Cases: Riviello v. Waldron – guy flipping knife under scope of employment (spread costs) Fruit v. Schreiner – guy driving from bar/social even within scope of employment; insurance my distribute risk. Russell v. Noullet – said employer not liable even though employee (police officer) started off w/in the scope but then acted in such a way to put himself outside the scope. Edgewater Motels v. Gatzke – economic analysis could say that the hotel would be liable, but this court found the employer liable for employee’s smoking fire accident. Boroughs v. Joinder – cropduster had a non-delegable duty because it is inherently dangerous. Otero v. Jordon Restaurant – 3 rd party contractor’s bleachers collapse; owner/employer was liable because of collateral negligence rule elements were not met. 3 Torts Outline Semester 2 Brian Pedigo STRICT LIABILITY (SL) Strict Liability does not require fault. Reasons for strict liability: deterrence, risk-distributed compensation, non-reciprocal risks Prima Facie Case: 1) An absolute duty on part of ∆ to make safe 2) Breach of that duty; 3) Breach was the actual and proximate cause of π’s injury 4) Damage to π’s person or property History of Trespass: liability was strict when harm was direct and forcible. Trespass to Case: could redress indirect harms provided fault was involved. Trespassing Animals: special strict liability rules still apply to trespassing animals. Evolution of SL: Brown v. Kendall rejected SL because there was no fault; later in Rylands v. Fletcher it was said that non-natural use is done at one’s own peril and there is liability regardless of fault. Rylands was the origin of the abnormally dangerous rule. SL has evolved to get more and more strict (in not requiring fault). Non-natural: could be not customary usage or unnatural [to the land] itself Abnormal Danger: where there is a direct and trespassory invasion of another’s land or person, there is liability (Sullivan – blasting killed passer-by). There is no difference whether the injury is direct or indirect – if damage, then liability. (Exner – blasting caused indirect injury). 1st Restatement: ultrahazardous activities; not a matter of common usage in the community 2nd Restatement: abnormally dangerous activity; must be the kind of harm that makes the activity dangerous in the first place (softened the 1 st approach). 3rd Restatement: going back to a more rigid approach; explosives is most common; does not talk about land use. Abnormally Dangerous or Ultrahazardous Test (BarBri): 1) Activity must involve a risk of serious harm to persons or property 2) Activity cannot be performed without risk of serious harm no matter how much care 3) Not a commonly engaged-in activity SL is more likely for activities that (Rest. 2d. § 520): 1) Create a high risk 2) Likelihood of great harm (gravity of risk) 3) Harm cannot be avoided with reasonable care 4) Activity is uncommon 5) Activity is done at an inappropriate place or site 4 Torts Outline Semester 2 SL is less likely for activities that (Rest. 2d. § 520): 1) value to community is outweighed by the dangerous attributes. Brian Pedigo Limitations on SL: Causation – actual and proximate cause must be found for SL Defenses to SL: 1) Assumption of Risk Not a Defense to SL: 1) Contributory Negligence – unless π knew of danger and assumed the risk (above) 2) Abnormal sensitivity Trespassing Animals: an owner has SL for the damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable. Rest. 2d § 504. Wild (or dangerous) animals: an owner has SL for injuries caused by wild animals so long as the person injured did nothing to bring about the injury. Rest. 2d § 507. Domestic (nondangerous) animals: no SL for injuries it causes. SL will attach, however, if the owner has knowledge of dangerous propensities. Scope of SL: the duty owed is an absolute duty to make safe the animal, activity, or condition that is ultrahazardous. Liability for any injuries caused therefrom. Brown v. Kendall – accidental stick-in-the-eye when separating dogs; ct. shifted from SL’s roots in trespass for direct, forcible harms to a fault-based negligence approach for liability. 5 Torts Outline Semester 2 Brian Pedigo NONFEASANCE (NF) Basic rule: THERE IS NO DUTY TO ACT unless: (Restatement § 314) 1) acts causing harm (ie. peril due to ∆’s negligence) a. mental or emotional harm 2) voluntary undertaking a. Once you start to act, there is a duty of reasonable care b. Prior conduct 3) Special relationship with victim-π a. Landowner-invitee - a special relationship creating a duty to act/inspect b. Carrier-passenger c. Innkeeper-guest d. Custodian-ward e. Employer-employee 4) relationship with others (control 3rd person) 5) assumption of duty by act or promise (eg. K created) a. K.H. v. Morgan – if ∆ discontinues aid, liable only if π is “worse off.” Misfeasance vs. NF: “There is no set criteria of where to draw the line.” –Robinson Constitution Torts (1983): Deshaney is an example of a constitutional tort; the 2 elements are: 1) ∆ violated a constitutional right of π 2) ∆ acted under the authority (or color) of state/local law Fault distinction: cases can be analyzed differently in regards to fault when analyzing the action vs. inaction issues. Analysis steps: 1) Action or inaction, 2) if inaction, is there an exception to the rule of nonfeasance, 3) if yes, was the ∆ at fault? Nonfeasance cases: Krieg – said no special relationship, therefore no duty to act. Old man who shot himself was put in no worse position than when the lady took the gun. Slodan – bartender’s refusal to allow person to call 911 was held liable for nonfeasance; court used public policy reasons of “public place” Yania – said no duty to rescue someone drowning right in front of you if ∆ did not put π in a position of danger (fault-based). Maldonado – duty to aid when harm is caused by ∆ and if ∆’s failure to assist aggravates the injury, ∆ is liable even though its original conduct was not a legal cause of the aggravation and even though π was guilty of contributory negligence. Farwell – since a special relationship existed, there was a duty to act rendering reasonable care under the circumstances. Once you begin a rescue you must perform it with reasonable care. Deshaney asked whether social services was acting or not acting. Held, not acting, therefore no duty. Constitutional Law: state created danger, or π in custody of ∆ will create a duty Common Law: Acts causing harm/risks, voluntary undertaking, or special relationship will create a duty to act. 6 Torts Outline Semester 2 Brian Pedigo DUTY TO CONTROL (PROTECT FROM) 3RD PERSONS General Rule: no duty to prevent 3rd person from injuring another, except: 1) Foreseeability of harm > burden of protecting (Balancing Test) -first look for a relationship (like landowner-invitee) then apply balancing test 2) Specific harm known about to befall π 3) Prior similar incidents 4) Totality of the circumstances Also, there may be a duty to protect for some situations where ∆ has the actual ability and authority to control the 3rd person’s actions. To impose a duty, ∆ must know or should know that the 3rd person is likely to commit such an act. Public Duty Doctrine: public entities and officers are not liable to individuals for failure to carry out a duty owed to the public at large rather than to particular individuals or groups. Control of Child: courts generally hold no duty to control own children unless know (or should know) of specific danger of child. Unforeseeable = not liable. Riss – state not immune from tort law in general, but gov’t has no duty to protect the public generally from external hazards, because there are no predictable limits. DeLong – if the state creates a special relationship by promising assistance, the state has a duty to exercise ordinary care in performing its duty voluntarily assumed. Dudley – no duty to control 3rd person unless ∆ has a special relationship to π or 3rd person. Posecai – duty determined by the balancing test, which balances the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of 3rd persons. Marquay – School had no liability for teachers abusing students. However, employers are normally liable for the torts of their employees, provided torts are committed within the scope of employment. Tarasoff – once a therapist determines a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect he foreseeable victim of that danger. Note: CA has refused to recognize a therapist’s duty to protect suicidal patients. Brigance – changed the common law rule of nonliability of tavern owners negligently selling liquor. Held, one who sells alcohol has a duty to exercise reasonable care not to sell to a noticeably intoxicated person. Posecai v. Walmart – considered 4 rules: 1) Specific Harm (outdated), 2) Prior similar incidents, 3) Totality of the Circumstances (most common), and 4) balancing test of foreseeability of harm vs. burden of protection (CA) 7 Torts Outline Semester 2 Brian Pedigo CONTRACT AND DUTY (Duty to Perform Promises) General rule: ∆ is under a duty to perform undertakings made for safety purposes and is liable for harm to the π caused by stopping performance before it is done. Gratuitous Promises: ∆’s failure to perform a gratuitous promise to render service or assistance does not give rise to a basis for tort liability – even if the ∆ knew that the π would suffer damage as a result of nonperformance. Rest § 324(a) mentions physical harm. No duty for promise & nonfeasance unless 1) safety promise 2) ∆ began to perform on K 3) Promise to 3rd person 4) Action as promise or undertaking Ks that limit the duty or liability are usually acknowledged with a few exceptions: 1) exculpatory provision unconscionable or against public policy 2) induced by fraud 3) clause does not in fact limit tort liability (language of K defective) Distinguishing K misfeasance vs. nonfeasance: to find nonfeasance see if ∆’s performance has gone so far as to affect the interest of π beyond expected benefit of K itself – which may be regarded as a positive act. Recent case law: looks at economic matters only vs. physical safety. There is no bright line insofar as preparation is concerned. Thorne – an example of economic, non-physical, harm. No liability because only economic harm. 2 guys owned boat jointly; ∆ promised to get insurance & failed. After boat crash π sues ∆ for not getting insurance. ∆ wins because nonfeasance rule. Moral obligation only. Leavitt – an example of outside scope of K (Proximate cause or no duty issue); plaster falls from ceiling. Southwestern Bell – breaking K was not a tort because there was no duty due to nonfeasance (they did not begin to act). Winterbottom – about promises to 3rd persons; π who is not a party to a K has no CoA in tort for harms sustained due to misfeasance. Today, where ∆’s neg leads to misfeasance, privity rule is obsolete and ∆ is liable to 3 rd party. If no privity of K then no CoA. Even though this rule has lost force, it can still be an influential factor. 8 Torts Outline Semester 2 Brian Pedigo H.R. Moch vs. Rensselaer Water – promises to 3rd persons case; zone of duty to entire city is too large; court wanted a broad rule for policy reasons to curb liability. This water company case is the exception to the rule that a ∆’s misfeasance in performance of a K can give rise to liability for foreseeable harm to foreseeable plaintiffs. Palka – class of persons in hospital fall within the scope of duty of ∆. Even though π was a third party to K, ∆ liable for injuries to π. Duty to π because of an anticipated relationship. Paz v. CA – motorcycle crashes into car b/c of no traffic signal; ct. held no liability under the neg undertaking rule because: 1) no increased risk of harm 2) no undertaking of (another’s) duty, and 3) injury not because of reliance on π. Florence v. Goldberg – if conduct has gone forward to the point that inaction would normally result in an injury, there is a relation in which there is a duty to go forward. Rosales – if lessor has control over a danger from tenant, he is under a duty of care to do all that he can to rid that danger on the leased premises. 9 Torts Outline Semester 2 Brian Pedigo NUISANCE Generally: Nuisance involves interference with the use and enjoyment, not possession. (eg. pollution, noise). Nuisance involves a full spectrum of culpability standards. Incompatible uses of two parcels of land is nuisance. A substantial and unreasonable invasion is required. Culpability Standards to find Nuisance: 1) Intentional & Unreasonable (Intent) 2) Unintentional & Negligent (Negligence) 3) Abnormally dangerous activities (SL) Substantial and Unreasonable: There is no nuisance unless it would substantially and unreasonably affect a normal person (sensitivity not enough). Focus is on the result-harm and not the conduct. Public or Private: any person who has damage different in kind from the public generally may recover damages for the nuisance (exception to the no private recovery for public nuisance). Private nuisance does not describe conduct but a result of harm. Public nuisance is the unreasonable interference with a right common to the general public (eg. health, safety, convenience). Reduction of market value helps determine if the harm is generic and would affect most people (ruling out thin-skull), but this is not an automatic bright line distinction. Trespass vs. Nuisance: nuisance has equitable remedies, trespass has remedies at law; trespass involves a concrete invasion, nuisance involves things like smoke and noise; nuisance weighs factors like risk-benefit, trespass does not. Remedies: Nuisance allows for equitable remedies including: 1) Compensatory damage 2) Punitive damages (in egregious cases) 3) Partial or Full injunction 4) Compensated injunctions (rare) No Contributory Negligence: in a nuisance claim, π’s contributory neg will not defeat claim. Interference: non-invasive nuisances like blocking light or air is called interference. Common Law Factors to Balance: 1) Nature of activity 2) Gravity of harm 3) Frequency of occurrence 4) Comparative economic interest 5) Environment / context normal for area (eg. Rylands non-natural to land/area) 6) Priority in time 10 Torts Outline Semester 2 Brian Pedigo PRODUCTS LIABILITY (PL) Generally: products liability involves liability for the manufacture or distribution of harmcausing products. K or Tort: π may claim on K theory (Breach of Warranty) or Tort (Negligence, SL, etc.) Theories of PL: 1) Negligence – prima facie case includes the following: a. Duty b. Breach c. Actual Cause d. Proximate Cause e. Damages 2) Warranty a. Express warranty – an express promise that describes the product and basis of the bargain. b. Implied warranty of merchantability – seller in goods of that kind i. Breach of warranty ii. Causation (breach-to-harm) iii. No privity required c. Implied warranty of fitness for particular purpose 3) Strict Liability a. ∆ must be in the businesses of selling/distributing the product (commercial supplier) b. Product must be defective (breach – no proof of negligence required) i. Manufacturing defect ii. Design defect 1. Safer alternative design (risk-utility test) a. Examines magnitude and foreseeability of harm, usefulness and desirability of product, alternative designs, known danger, obviousness of danger, warnings, consumer expectations, cost-benefit of design 2. Consumer expectations test (default test the ct. will choose) iii. Warning/information defect - Where consumer could have used product more carefully had they been warned. 1. Was risk of harm non-obvious? 2. Would π have not used had they known? c. Defect must exist at time of distribution/sale d. Actual Cause – defect caused harm i. A subjective test to what π would have done but-for e. Proximate Cause (foreseeability, manner, extent) f. Harm g. Defenses 11 Torts Outline Semester 2 i. ii. iii. iv. Brian Pedigo Assumed Risk Unforeseeable misuse Contributory Negligence (depends on jurisdiction) Comparative Fault (depends on jurisdiction) 1. CA rule says comparative fault can reduce π’s recovery v. Disclaimer of liability are ineffective in negligence or SL cases if personal injury or property damage has occurred 4) Intent a. b. c. d. Usually based on battery No privity required Compensatory and punitive damages available when PL based on intent Intentional tort defenses available, but not negligence defenses (eg. assumption of risk) 5) Implied warranties of merchantability and fitness for a particular purpose 6) Representation theories (express warranty and misrepresentation) Implied Warranty of Fitness: UCC § 2-314 – implied warranty that goods are “fit for the ordinary purposes for which such goods are used and that they are as good as the seller claims they are.” Strict Products Liability – Restatement 402A 1) No fault required 2) No privity required 3) SL because unreasonably dangerous 4) Reasonable expectations define defective product Design Defects: a design defect if it is unreasonably dangerous and enhances π’s injury during foreseeable use. (eg. Jeep rollbar) Warning or Information Defects: the 3rd restatement works with three types of defects: 1) Design 2) Manufacturing 3) Warning Key questions: 1) What is a product? (commercially distributed) 2) Is it a product or service? 3) Who is a proper ∆? (one time seller does not qualify) Stand-alone economic harm is typically not compensable. Lee v. Coca-Cola – bottle explodes in waitress’s hand; held, if a defect existed in ∆’s product when it left its control, ∆ should be liable for the injuries caused by such defect. Newmark – said that services involved does not nullify the products piece in a hybrid case of products and services. 12 Torts Outline Semester 2 Brian Pedigo SETTLEMENT AND APPORTIONMENT Insurance: with subrogation an insurer stands in the shoes of the insured. n/a to life insurance. With liability insurance the insurer has two obligations: 1) Pay the judgment against insured 2) Defend the insured Insurance is all about spreading the costs in risk allocation. Settlement & Negotiation: majority of tort cases are settled; release of liability is given; negotiations are not admissible evidence; statutes may force π to pay for ∆’s costs if ∆ gives an “offer of judgment,” the offer is rejected, and then the verdict comes back lower than the offer. Improvident Settlement: generally, rescission of settlement is available for mistakes relating to the nature of known injuries but not for mistakes as to future course and effects of those injuries. In other words, if unknown injuries were not within the contemplation of the parties, the release will be set aside. K theories of mistake, fraud, coercion, and incapacity are also grounds for avoiding a release. Three approaches to set aside a settlement (*ROBINSON-TEST*): 1) Deny rescission even though injuries unknown at time of settlement 2) Allow rescission based on any mistake present or future 3) Allow if mistake about nature of known injury, but not for future effects a. Majority/best/CA Rule Allocating Responsibility Among Multiple Defendants: Joint and Several Liability applies in four situations: 1) Concerted action 2) Indivisible injury 3) [A] creates a risk of harm by [B] 4) ∆ is vicariously liable Today it is now practical to settle with less than all tortfeasors because of contribution. Contribution: available only when there is common liability and when the tortfeasor seeking contribution has paid more than his equitable share. Limitations on Recovery: CA limits recovery for non-economic damages in joint liability – only recoverable in several for % of fault. Distinguish Joint & Several from Several Liability: J&S makes ∆ max out paying 100% if other ∆ insolvent. Several liability fixes a ceiling at % of fault for each ∆. Mixing Levels of Liability: some jurisdictions will include intentional tortfeasors with negligent tortfeasors (mix) when apportioning damages (Bassett). 13 Torts Outline Semester 2 Brian Pedigo Other jurisdictions say the conduct of a negligent ∆ should not be compared with the intentional conduct of another (not mix) in determining comparative fault because the intentional conduct is the foreseeable risk created by the negligence tortfeasor (Turner). This creates an incentive to comply for the negligent tortfeasor. Damages: Constitutional torts must prove actual damages. Personal Injury tort damage has 5 elements: 1) Medical expenses 2) Lost earning capacity 3) Pain & Suffering 4) Medical monitoring 5) Specific (other) harms Damages are subject to inflation/present value Scope of Pain & Suffering (P&S): self-consciousness, withdraw, fear/anxiety, etc. P&S pays attorney’s fees. CA has a P&S cap on heath-care torts to ¼ million. Others cap non-pecuniary, gov’t entities, and/or children. Some caps are subject to constitutional challenges. Duty to Mitigate Damages: π has a duty to mitigate damages; if π does not, that amount is deducted from recovery. Punitive Damages: are awarded when there is a bad state of mind or recklessness – for serious misconduct. Joint & Several Liability Rule Variations:  Some jurisdictions do not allow contribution after a settlement agreement  Sometimes a release releases both parties or tortfeasors  Burden of proof on co-∆ to blame other co-∆ Settlement Steps: 1) Regime of contribution (only judgment?) 2) Can other tortfeasors get contribution from other settling ∆? 3) By how much is the total claim reduced based on the settlement? (release releases all 100% under the common law – mention this on test) 4) Reduced by % of fault, or $ paid, or amount agreed upon? (last one the CA rule) Indemnification & Vicarious Liability – employer may have right to get back $ paid out for employee’s tort. Also, employer may be able to get back $ where π could have sued 3 rd party. (Sourbier) Pro Rata / Pro Tanto: Pro rata is a % to be determined by jury; pro tanto is the $ amount paid. Cartel Capital – when one ∆ settles, the remaining ∆s are liable for their % of fault. (not looking at $ paid out). 14 Torts Outline Semester 2 Brian Pedigo GOVERNMENT ENTITIES AND IMMUNITY Issue-spotting Public Entities: if you see a public entity, figure out what specific immunities apply. First, what kind of entity? (Federal, state, municipality) Second, is it an entity or an officer? Federal Government: the Federal Tort Claims Act (FTCA) opens the door to liability for actions and sets limits to liability; analogous to a person’s liability drawing from state tort law. The exceptions to Federal Gov’t tort liability are: 1) Feres Exception – on duty, incident to service, gov’t immunity. a. Reasons for Feres immunity include i. Not private ii. Subject to state laws iii. Pensions are substitute for tort liability iv. Interferes with military discipline b. Note that spouse and child are not barred from recovery under Ferez. 2) Discretion / Policy immunity – 28 USC § 2680(a) a. Necessary elements include: i. Gov’t exercised discretion vested by law or addressed to policy issues 3) No strict liability 4) No punitives Westfall Act: the Attorney General may certify certain acts of employees as within the scope of Federal employment and therefore dismiss the suit against the employee. Loge – about private person analogue in making the gov’t liable; gov’t didn’t follow a standard so discretionary immunity did not apply. Maas – set forth two criteria for discretionary immunity: 1) Discretionary Acts / Judgment-choice AND 2) Based on Policy Decision State Immunity: similar to the FTCA. State is not liable for breach of a public duty (owed to the public generally as opposed to a specific individual). State is also not liable for nonfeasance. Riss – no tort liability for police protection because of discretionary immunity and policy of allocation of resources. Public Duty Doctrine: officers / entities not liable for failure to carry out a duty owed to the public at large. Special Relationship Created when: 1) Promise / Act undertaken 2) Knowledge that inaction will lead to harm 3) Direct contact 15 Torts Outline Semester 2 4) Justifiable reliance on undertaking Brian Pedigo § 1983 actions can reach employees, but not the government. Municipalities can be sued on § 1983 on policy, but not acts. Policy includes common conduct. 16 Torts Outline Semester 2 Brian Pedigo DEFAMATION (DIGNITARY TORTS) Defamation includes both libel (written) and slander (spoken). Defamatory speech shows hatred, contempt, or ridicule, harming the reputation of another. Media broadcasts are libel. Only living people can be defamed, and corporations can also be defamed. Restatement Definition: defamation lowers the estimation of π in community and harms association with π. Distinguish defamatory torts from privacy torts. Privacy torts include: 1) intrusion on π’s solitude / private affairs 2) public disclosure of embarrassing private facts 3) publicity of false light 4) commercial appropriation of ∆’s advantage of π’s image 3-Step Analysis: when determining defamatory torts consider common law, constitutional limitations, and privileges. Common Law Defamation elements: 1) Published / Publication – communication reaching a 3 rd party who understands it. a. Publication must be intentional or negligent; if someone steals a diary out of your home, this is not intentional or negligent passing of information. In other words, ∆ needs to have some control of the dissemination of material. 2) Defamatory statement a. The defamatory statement must be of or concerning the π., damaging π 3) Reasonably understood to be about π a. If a person can reasonably infer the person/individual π, then this element is met. b. Must point to an individual, not a group in general i. All members of a small group – actionable by each member ii. All members of a large group – not actionable by any member iii. Some members of a small group – reasonable person refers to π? 4) Unprivileged a. Privileges (defense shields to defamation) include: i. Truth – some states say falsity is part of a prima facie case, others say truth is a defense. ii. Libel-proof – if a person is already so low in their reputation, any comment may not lower them (eg. a prostitute). iii. Consent iv. Judicial/legislative/executive proceedings v. Compelled Broadcast or publication vi. Between spouses Common law has sought to make statements not defamatory as much as possible. The restatement has moved away from this leniency. However, C.L. presumed defamatory statements to be false. 17 Torts Outline Semester 2 Brian Pedigo Public Figure: adds two additional elements for a prima facie case: 5) Falsity of the defamatory language 6) Fault on ∆’s part Supreme Court Presumption: has held that statements may not be presumed false; π has burden to prove falsity. There is now a fault requirement in cases involving a public figure or matters of public concern. Malice: knowledge that statement is false or reckless disregard as to its truth or falsity (subjective standard). Spite is not enough. Public Officials / Figures – Malice Required (NY Times v. Sullivan) 1) Publish, 2) Identified π, 3) defamatory statement, 4) malice, 5)false Private Persons / Public Concern – No malice required (Gertz) – some fault (neg) need shown if public concern 1) Publish, 2) Identified π, 3) defamatory statement, 4) false, 5) fault Purely Private – no limitations except for the common law requirements. (Dun & Bradstreet) 1) Publish, 2) Identified π, 3) defamatory statement Slander Per Se – presumed damages: means that something on the face of it is defamatory. Generally you must prove special damages (ie. a concrete loss) in slander unless statement is within one of the four categories of slander per se: 1) Imputation of a serious crime 2) Imputation of a loathsome disease 3) Imputation of traits incompatible with π’s trade 4) Imputation of serious sexual misconduct Libel Per Se: majority holds that general damages are presumed by law for all libels (no special damages needed). Minority distinguish between libel per se and libel per quod (needs special damages). Libel Per Quod – req. proof of special damages: requires external evidence to find defamation. This is the minority approach. NT Times v. Sullivan demonstrated the tension between an individual’s reputation vs. free speech. Said that presumed falsity was unconstitutional – π has burden of proof. 18 Torts Outline Semester 2 Brian Pedigo WORKERS COMPENSATION (WC) Generally: a workers comp. claim is exclusive – no tort liability for the employer. Every jurisdiction has WC. WC gives compensation to employees without regard to fault. They are paid by mandatory insurance. WC provides unlimited coverage for impaired capacity and medical bills. However, there is no coverage for pain & suffering. Non-employees: employers can be sued by non-employees. Litigation is usually over whether injury was within the scope of employment. Distinct from Vicarious Liability Claims against 3rd parties are allowed – not barred by WC. 19