Torts II Outline

Professor Bauman


I.                   Vicarious Liability

A.     Imposing liability on a party that may not be guilty of any negligence

1.      the fault of the defendant is no longer the basis of liability

2.      the defendant is held liable for a tort committed by another

3.      to justify imposing liability look first at the relationship between the defendant and actual tortfeasor

B.     Respondent Superior

1.      employer is liable for the torts committed by an employee while the employee is acting within the course and scope of employment

2.      active negligence = fault; respondent superior = no fault

3.      control theory: basis the imposition of liability on the employer’s right to control and direct the activities of the employee

a.       looks at what the employee was doing and askes whether it was part of the employees job (within the course and scope of employment)

b.      not a fault theory

4.      enterprise theory- basis liability on the benefit to the employer’s enterprise provided by the employee’s conduct

a.       benefit theory

b.      looks more to the purpose of the employee’s activity (whether it was intended to benefit the enterprise in some way)

c.       if the enterprise has to pay for torts committed by the employee the enterprise will have to absorb the cost resulting in increased prices (economic incentive to be safe and keep accidents down)

d.      Policy bases: this approach looks for the deep pocket, the employer who can afford insurance and incorporate this price in to their product

e.       provides compensation for victim by spreading the loss around society because the party responsible can lay the price off through their products

f.        forces the enterprise to internalize the losses to others caused by its operations which provides an incentive for safety precautions

C.     Employer/ Employee Relationship

1.      Who is an employee?

a.       an employee must be distinguished from an independent contractor

b.      the general rule is that the employer is vicariously liable for torts committed by an employee within the course and scope of employment, but not tort committed by an independent contractor

c.       the distinction is drawn based on the 10 factor test of the Restatement of Agency (no one factor alone is decisive)

1.      the extent of control the master has over the work

2.      whether or not the one employed is engaged in a distinct occupation or business

3.      the kind of occupation (is the work usually done under the direction of the employer or by a specialist without supervision?)

4.      skill required

5.      whether the employer supplies the tools, instrumentalities and place of work

6.      length of employment

7.      method of payment, by the time or by the job

8.      whether the work is part of the regular business of the employer

9.      whether or not the parties believe they are creating the relation of master and servant

10.  whether the principal is or is not in business

d.      the most important of these factors are the extent of the control over the detail of the work exercised by the employer, and whether the work done by the agent represents a trade or business distinct from that of the employer

e.       borrowed servant doctrine- the services of an employee may be loaned to another employer, if that employer is now in control of the employee, the employee may be the new employer’s “borrowed servant”

1.      this matters for workers compensation and vicarious liability

2.      should be consent on the part of the employee because changing the company you work for is a significant change of employment status

3.      fact situation not to be decided as a matter of law

2.      Scope of employment

a.       going and coming rule- the commute is not generally within the course and scope of employment

1.      this is a cost of the individuals decision to drive a car and will be dealt with by auto insurance

2.      exception: employee is given a task to complete on the way to and from work for the employer (factual dispute)

3.      exception: travel to the place of work creates a special hazard or contains special risks

b.      frolic v. detour

1.      frolic- occurs when the employee departs from the course and scope of employment to a significant degree in pursuit of the employee’s own interests

2.      detour- less serious deviation from the course and scope of employment

3.      the employer is vicariously liable for torts committed during detours, but not those committed during frolics

4.      frolic and return- the frolic is over when the employee’s own business is completed and the employee returns to the business of the employer; usually the employee is not back within the scope of employment until actually back on the authorized route

     3. Intentional torts

a.       Employer is vicariously liable for the intentional torts of employees if:

1.      the tort is within the scope of employment and in furtherance of the employer’s business; AND

2.      the tort was foreseeable in view of the nature of employment

b.      dual purpose doctrine- even if the EE was motivated by some personal interests, if EE is at all engaged in the furtherance of ER’s business, the ER may be held liable

c.       some courts impose vicarious liability if the tort occurred during the performance of the employee’s duties for the employer

d.      horseplay à always argued by ER to be outside the scope of employment, approach along the same lines as frolic v. detour

      4. Vicarious liability for punitive damages

a.       punitive damages require some form of malice

b.      for vicarious liability, the problem is to establish that the principal, not just the agent, acted with malice

c.       this requires that the principal must have directed the action of the agent, participated in it, or ratified it

d.      this is not really vicarious liability because punitive damages are a punishment for more serious forms of misconduct

e.       punitive damages are properly awarded if:

1.      the doing and the manner of the act was authorized, or

2.      agent was unfit and it was reckless to employ or retain, or

3.      agent was employed in managerial capacity and was acting within scope, or

4.      act was ratified or authorized

      5. Independent Contractors

a.       general rule: a principal is not vicariously liable for the negligent of an independent contractor

b.      rationale: the principal is not in a position to control the manner in which the IC performs the work

c.       If the principal does attempt to control the work, this may result in liability because the principal in fact acted without due care in its supervision of the contractor

d.      Exceptions:

1.      where the K requires intrinsically dangerous work

2.      where the principal is charged by law with the duty breached

3.      where the work will create a nuisance

4.      where the work will involve peculiar risks of harm unless proper precautions are taken

5.      where the act is illegal

e.       Rationale for the exceptions:

1.      non-delegable duties

2.      as a matter of public policy we do let the principal evade certain duties by contracting out of the work

3.      in these areas, we expect the principal to take special precautions to prevent injury

f.        Problem p.648

      6. Joint enterprise

a.       members of a joint enterprise are vicariously liable for torts committed by other members of the group

b.      elements:

1.      an agreement among the members of the group

2.      common purpose

3.      community of (pecuniary) interest in that purpose

4.      equal right of control on the enterprise

c.       Social joint enterprises

1.      the joint enterprise doctrine began with car trips where a passenger would be responsible for the negligence of the driver

2.      this often resulted in imputing the drivers contributory negligence to the passenger

3.      in recent years courts have limited the doctrine in the car and social setting by requiring some pecuniary interest

     7. Joint venture

a.       has the same elements as a JE but is explicitly a business or profit making association

b.      a JV is distinguished from a partnership by the fact that it  is usually for a more limited purpose, and exists for a limited period of time

c.       In a JV the members of the group owe each other fiduciary duties with regard to the common purpose of the group

II.                Strict Liability

A.     Strict liability for animals

1.      possessors of animals are strictly liable for harm caused by the trespass of their animals on the property of others

2.      exception to the trespass rule: dogs and cats

3.      possessors of wild animals (those not customarily domesticated in the region) are SL for al harm done by the animal as a result of the dangerous characteristic of the animal

a.       question of locality as to what is ordinarily domesticated in the area

4.      domesticated animals- a possessor of an ordinary domesticated animal is not SL for harm (other than from trespass) caused by the animal UNLESS:

a.       the possessor knew the animal had a dangerous propensity, and

b.      that dangerous propensity was the cause of the harm

B.     Coase Theorem- Coase argued that if the assignment of rights were clear, and if the parties could costlessly negotiate, the efficient result would occur no matter how the law assigned rights and responsibility for damages

1.      ex. Is it worthwhile to build a fence to keep the cows out of the corn?

a.       social cost: who should bear the cost if the cows stray and eat the crops?

b.      Will the party with responsibility build a fence?

c.       Real world problems: transaction costs, free riders, distributive effects, common or public goods (consider these issues in determining negligence v. SL.  Who will bear the cost?)

C.     Strict liability imposed when one (Rylands v. Fletcher):

1.      makes a non-natural use of the land

2.      in the courts of the non-natural use brings or collects on the land something not there in its natural state, and

3.      this material escapes from the land and causes injury to neighboring land and its possessors

D.     Abnormally dangerous activities

1.      Factors:

a.       high degree of risk

b.      likelihood that harm will be great

c.       inability to eliminate risk using due care

d.      activity is not a matter of common usage

e.       activity is inappropriate in the locality

f.        social value of the activity

g.       *no one factor is decisive

E.      Difference in negligence and SL

1.      Important to understand!

2.      You are negligent when B<PL

a.       safety precautions have to be less than accident costs

b.      if you don’t want to spend $100 to avoid $50 worth of accident costs you are in a negligence regime

c.       in a SL regime the defendant is better off not spending the money in safety and paying off the accident when it occurs

d.      SL results in the same level of care, the difference is who pays for the accidents

1.      negligence à victim pays

2.      SL à injurer pays but sill wont take safety precautions bec it is cheaper to just pay off the accident

      3. SL does create incentives that negligence does not:

a.       relocate activity

b.      find a substitute

c.       reduce amount or level of activity

      4. Factor C, inability to eliminate risk using due care, has become the most dominant factor

III.             Products Liability

A.     Theories of recovery: deals with the problem of the liability of supplies of the products to users and others for losses caused by some defect in the product.  3 theories of recovery are used to attempt to impose liability:

1.      negligence

2.      breach of warranty

3.      strict products liability

B.     Privity

1.      Winterbottom v. Wright- it was one time held that a manufacturer or seller of a product was not liable to a claimant injured by the product unless privity of K existed, that is, unless the claimant had purchased the product directly from the defendant

2.      The result was often no remedy because the retailer was not negligent and the negligent manuf. was not in privity

3.      Exceptions

a.       Thomas v. Wincheste)- privity does not apply when a product is imminently dangerous to human life (manuf. à retailer à doctor à patient)

1.      the court is concerned about unknowable liability to unknown parties

2.      a product is imminently dangerous when it is foreseeable

3.      in MacPherson v. Buick Motor the exception swallowed the rule when the ct held that a product is a thing of danger if it is foreseeable that the product is likely to cause injury if negligently made

b.      independent cause- owners act of negligence causes one who is invited by him to use his defective appliance on the owners premises

c.       one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury which might have been reasonably anticipated

C.     Breach of Warranty

1.      Most common types:

a.       negligence in manufacturing the product

b.      negligence in inspecting or testing the product ( by any party with a duty to do so)

c.       negligence in the advertising or sale of the product, typically a problem of failure to warn about dangerous attributes of the product

2.      Public policy arguments for SL:

a.       manufacturer can best anticipate and guard against product hazards

b.      manufacturer can best assure against losses

c.       SL avoids the proof problems of negligence

d.      Would in essence change the warranty of safety into a tort duty

3.      Warranty can be thought of as an express or implied representation about the quality of attributes of a product. 

4.      If the product does not live up to certain requirements and loss results, a breach of warranty claim may provide recovery.

5.      Type of loss:

a.       if a dangerous condition of the product results in personal injury or physical damage to property, courts often merge breach of warranty and strict torts liability

b.      if the product performs poorly resulting in economic loss, courts treat this breach as a commercial dispute and require compliance with UCC (notes in book on UCC)

6.      abolition of privity limitation in implied warranty situations when dealing with sales to consumers of defective products

7.      limitations on warranty:

a.       the UCC imposes a requirement that the claimants give prompt notice of the breach to the manufacturer

b.      the concept of warranty seems to require that the buyer have relied on the warranty in making the purchase

c.       in spite of limitations on the ability to do so, sellers may still be able to limit or disclaim warranties

d.      UCC itself limits privity of K

D.     Strict Products Liability

1.      Section 402A: Defendant is held strictly liable when:

a.       defendant is in the business of selling the product

b.      defendant in fact “sells” the product

c.       at the time the defendant sells the product, the product is in a defective condition

d.      the defective condition renders the product unreasonably dangerous

e.       the defect is the actual and proximate cause of harm to the plaintiff


a.       comment g: meaning of defective condition

1.      defect has to be in the product when it leaves the seller’s hands

b.      comment I: meaning of unreasonably dangerous

1.      more dangerous than the ordinary consumer would suspect

2.      not unreasonably dangerous if ordinary consumer understands the harm (i.e. tobacco)

c.       comment j: failure to warn

1.      does the consumer understand the danger of the product? How to use the product safely?

d.      comment k: unavoidably safe products (prescription drugs)

1.      warning à if the consumer understands the risk, they can then make an informed choice

e.       comment n: contributory negligence as a defense

       3. R2T on defects:

a.       manufacturing defects- a flaw in construction that causes the product to depart from its intended design

b.      design defects- the products very design rendered it dangerously unsafe

c.       warning defects- failure to inform the user of potential dangers makes the product dangerously unsafe

      4. Manufacturing defects

a.       identify the flaw in the product

b.      prove the flaw caused the harm

c.       trace the evidence of the flaw to the time of the sale of the defective product by the defendant

d.      negate other sources of the flaw, such as maintenance or mistake

e.       defects must be in the product when it leaves the manufacturers hands

f.        problem  with factual issues

      5. Design defects

a.       2 tests:

1.      consumer contemplation (expectation) test: a product is defective if it is dangerous to an extent beyond what would be expected by the ordinary consumer

a.       a product is defective if it is dangerous to an extent beyond what would be expected by the ordinary consumer

b.      the test is based on comments g and I which make defect depend on the product being more dangerous than the ordinary consumer would expect

c.       problems:

1. if the danger is obvious or a warning is given the plaintiff will lose under this theory even if the product could have been made safer at a very low cost

2. product such as new drugs that may present a risk to a few people could be found defective under this test, even though the overall benefits of the drug are huge

3. gives little guidance to the jury

2.      risk-utility test: balances the dangers and the benefits of the product design

a.       looks at the product as designed and asks whether the magnitude of the danger presented by the product is larger than the utility of the product

b.      compares the actual dangers presented y the product (not the foreseeable dangers) with the actual benefits provided by the product (not the anticipated foreseeable benefits)

c.       problems with incorporating safety:

1.      product may become less useful

2.      may change the product to decrease the chances of one accident while increasing the chances of another

d.      factors in balance:

1.      utility of the product

2.      likelihood and severity of harm from product

3.      availability of substitute products

4.      manufacturers ability to design out danger

5.      users ability to avoid harm by using the product carefully

6.      users awareness of the dangers because of common knowledge of warnings

7.      manufacturers ability to spread the loss

e.       fairly liberal test, not widely applied

f.        looks like a negligence standard, but courts try to make it SL

     3. Product intended to be used by adults, risk of child use

a.       must prove the design was unreasonably dangerous

b.      have to design against foreseeable kinds of misuse

c.       look at risk-utility factors to prove whether or not product as designed is unreasonably dangerous

d.      manufacturers defenses:

1.      customer preference- utility is lose with child proof mechanism

2.      users should be aware there is a likelihood child will get a hold of it

e.       prevailing rule: R3T on products liability (p739)

       6. Unavoidably unsafe

a.       Prescription drugs: rule choices

1.      SL for design defect (do the risks in fact outweigh the benefits?)

2.      SL unless the drug is unavoidably dangerous

3.      Liability only for failure to warn (comment k)

b.      public policy considerations:

1.      stifling innovation and deterring development of new drugs

2.      the role of the FDA in drug testing and approval

3.      price increases

4.      lack of availability of some drugs

c.       design v. warning

1.      under comment k the duty of the manuf is to warn about dangers that are known or should have been known about

2.      R3T: narrow definition of defective design (never prescribe drug to any class of patients if defectively designed)

d.      learned intermediaries

1.      for most prescription drugs the manuf must give the warnings about the product to the physician ( the learned intermediary)

2.      it is then the duty of the physician to inform the patient of the risks and benefits of the drug under the informed consent doctrine

3.      in a few situations where the manuf knows no physician will be involved the warning must be given directly to the patient (i.e. mass immunization)

       7. Failure to warn

a.       the manuf knew or should have known about the hazard, and

b.      failed to take precautions in marketing the product to warn users or consumers about the hazard

c.       not only must the manuf discover the hazard, but the warning given must be adequate to inform the public about the danger

d.      triggering the duty to warn:

1.      if the danger is obvious or well known to the public there is no reason to warn

2.      warnings are required for hidden dangers such as the possibility of allergic reactions

3.      warnings are required where necessary for safe and proper use of the product

4.      warnings are necessary for reasons of personal autonomy and consent when dealing with the risks of prescription drugs and similar beneficial but risky products

e.       Read and Heed

1.      plaintiff is usually given the benefit of a presumption that a proper warning would have been read and heeded and thus the accident would have been avoided

2.      the presumption is rebuttable, ex. By showing the plaintiff ignored other warnings that were provided

f.        The warning must be:

1.      available to the actual user

2.      understandable to the actual user

3.      sufficiently prominent to attract users notice

4.      sufficiently urgent given the gravity of the risk

    8. Other defendants

a.       If consumer does not have any recourse they may go after the retailer who had nothing to do with the products quality or safety, the retailer can then sue the manufacturer

1.      this will make the retailers deal with reputable suppliers

2.      402a says anyone who sells a product in a defective condition is liable

b.      sellers of used goods

1.      Consider: goal of compensation, goal of loss spreading, ability to pressure the manuf to improve safety, ability to take steps to assure greater safety, ability of the innocent seller to obtain indemnity from the manuf

c.       R3T Seller of used products is liable:

1.      when negligent

2.      for a manuf defect if marketing would lead consumer to expect product was as safe as new

3.      where seller manufactures the product

4.      where product violates a safety statute or regulation applicable to the used product

d.      lessors of chattels get same considerations as sellers of used goods

e.       provider of services

1.      people that provide services are not covered by SL even though they may use a product to perform the services

2.      professional services or sale of goods?

a.       a transaction for prof services is not subject to SL even though the prof may incidentally make use of products in rendering the service

b.      a transaction that is essentially the sale of a product with some service component will be subject to SL if the product is defective

c.       distinction drawn upon the lines of learned professions à liability based on prof standard of care not SL for defective products

       9. Problem of economic loss

a.       economic loss damages are designed to deal with disappointing performance of the product (these losses are assigned by K, parties can assign the risks by bargaining)

b.      Theories of recovery:

1.      personal injury to user or consumer, or physical damage to other property

a.       theories: negligence, strict products liability, breach of warranty

2.      economic loss resulting from failure of product to perform as expected

a.       theories: breach of warranty

3.      economic loss resulting from physical damage to the product itself

a.       theories: breach of warranty

      10. Defenses ( plaintiffs conduct)

a.       traditional SL rule:

1.      contributory negligence is not a defense

2.      assumption of the risk is a complete bar

b.      402a comment n:

1.      contrib negligence that consists merely in a failure to discover the defect or to guard against the possibility of its existence is not a defense

2.      assumption of the risk is a defense

c.       plaintiffs conduct should be considered in a strict products liability case to give the plaintiff incentive to do something to avoid the accident, on the otherhand, this undercuts encouraging safer products

d.      we do reduce plaintiffs recovery for conduct failing to use due care for ones safety

       11. Unforeseeable product misuse

a.       comment h: a product is not defective if it is safe for normal use

b.      unforseeable misuse of a product leading to injury does not result in SL because the product is not defective

c.       if the product was defective, the defect was not the cause of the harm, the misuse was

      12. Foreseeable product misuse

a.       foreseeable misuse imposes on the manuf a duty to protect the user

b.      the manuf may have a duty to design the product to avoid harm from the misuse (car crashworthiness)

c.       manuf may have a duty to warn against the misuse (overdoes warnings on medications)

E.      Summing up

1.      Plaintiffs conduct may be relevant to any of the following issues:

a.       duty/breach: was the product defective or was the accident the result of misuse?

b.      Prox cause: was the conduct of the plaintiff so unforeseeable as to excuse the defendant from liability?

c.       Affirmative defenses: should the lack of care of the plaintiff reduce or bar recovery?

IV.              Nuisance

A.     Private Nuisance

1.      Trespass- protects the interest of exclusive possession, doesn’t matter that there is no harm caused.

2.      Strict liability- deals with categories of uses- unreasonably dangerous, etc.

B.     Private Nuisance:  Definition

1.      Private nuisance is some thing or activity that interferes substantially and unreasonably with possessors use and enjoyment of land.

2.      Usually the interference is accomplished by a non-trespassory invasion, such as smells, light, smoke, dust, noise, or other forms of pollution.

3.      The typical nuisance case involves the problem of conflicting land use.

C.     A remedy for private nuisance

1.      Plaintiff must show:

a.       Liability producing conduct (intentional, negligent, or abnormally dangerous), resulting in:

1.      Interference with the use and enjoyment of plaintiff’s land that is

2.      Substantial and unreasonable.

2.      Depends on the setting à Something can be a nuisance in one setting and not in another

D.     Interference with use and enjoyment

1.      Interference means physical damage to land

2.      Interference with comfort of health of the occupant of the land, as by smoke, dust, noise, light or odors.

3.      Interference with mental tranquility, as by keeping something noxious or unpleasant on adjoining land.

E.      Substantial Interference

1.      Substantial means more than a trifle.  Some significant injury must occur.  Small interferences probably cancel one another out. 

2.      When nuisance activity changes the condition of the land, its substantial character is established.  Any measurable economic loss resulting is substantial.

3.      A nuisance that causes personal injury is substantial. 

4.      If the nuisance results only in discomfort or annoyance, the interference must be severe.  If the interference affects the market value of the land, it is severe.

5.      The standard applied is that of the normal person in the locality…whether such a person would regard the invasion as seriously annoying.

6.      Sensitive uses cannot impose on neighbors a duty to safeguard them

F.      Unreasonableness of interference: striking the balance

1.      the amount of harm caused by the activity

2.      the capacity of each party to bear the harm and shift the loss

3.      the nature of the clashing land uses

4.      the nature of the locality

5.      which activity has priority in time

G.     Injunction

1.      to get an injunction you must show you will suffer irreparable injury if the court doesn’t order the defendant to stop

2.      go through striking the balance factors

3.      plaintiff must first demonstrate that a nuisance exists

4.      plaintiff must then satisfy the requirements for equitable relief:

a.       damages are not an adequate remedy, and

b.      irreparable injury will occur if no injunction is granted

5.      this will require that defendants conduct be both intentional and continuing

6.      courts will consider whether the defendants conduct was unreasonable:

a.       whether the harm caused by the activity outweighs the benefits that the activity produces; and

b.      whether it is possible to reduce the harm without a significant loss of utility

H.     Sensitive user problem- sensibility of the ordinary user in the community sets the nuisance standard

I.        Damages

1.      temporary damages compensate for the harm suffered up to the time of trial

a.       the problem with this is that the plaintiff is still going to have a nuisance and will have to file another lawsuit

2.      if the nuisance is continuing an award of temporary damages will require the plaintiff to sue repeatedly to collect for additional harm

3.      permanent damages are based on the loss of land value and are supposed to compensate for all harm caused by the nuisance, past, present and future

J.       Public nuisance

1.      public nuisance is a catch all low grade criminal offense, involving interference with a common public right

2.      a serious interference with public health, safety, or comfort is a public nuisance even if not a codified criminal offense

3.      examples:

a.       public health (pollution of water supply, malarial swamp)

b.      public safety (vicious dog)

c.       public morals (crack house, gambling)

d.      public peace

e.       public comfort/convenience (blocking public street, smoke, dust, vibrations)

4.      the DA can prosecute those creating a public nuisance for committing a criminal offense or try to stop the nuisance by bringing a suit to enjoin or abate maintenance of the nuisance

5.      private remedies are available when a person has suffered a “particular harm” (harm different in kind from that suffered by the general public from interference with the public right)

a.       ex. Personal injury, damage to or loss of value of land

6.      if the public nuisance also interferes with the use and enjoyment of land, the possessor of the land can also bring an action under a private nuisance theory

V.                 Defamation

A.     Remedies wrongful injury to a person’s reputation

B.     Levels of analysis:

1. common law rules

            a. what is defamatory?

            b. traditional elements

                                    c. absolute & qualified privileges

                        2. constitutional limits based on factors such as:

                                    a. status of plaintiff as a public or private figure

                                    b. status of defendant as part of media

                                    c. topic of defamation as a matter of public or private interest

                        3. need to do both levels of analysis

a.  figure out whether or not there is a cause of action at all at common law

b.  then look at constitutional limitations

            C. What is defamatory?

                        1. communication that would tend to harm a persons reputation in the community

                        2. a defamatory communication:

                                    a. exposes the plaintiff to hatred, contempt, and ridicule

                                    b. impairs the plaintiffs reputation for morality and integrity; or

                                    c. causes the plaintiff to be avoided by others

D. Who Decides?

1. The role of the judge is to determine whether the communication could bear a defamatory meaning.

2. The role of the jury is to determine whether the defamatory meaning was the one in fact conveyed.

3. Libel per se- is a written statement that is defamatory on its face.  You don’t need to know anything other than the statement to know its defamatory.

4. Libel per quod- you have to know other additional facts in order to understand the defamatory meaning of the statement. 

5. State of mind of defendant will become extremely important when you get to const. issues.  Common law state of mind has almost no role played.

E. Defamatory in Whose Opinion?

1.      It is not necessary that all or a majority of the population regard the matter as defamatory.  It is sufficient if the statement would damage the plaintiff’s reputation in the eyes of a large and respectable minority:

a.       communist, homosexual, liberal, bastard

F.“of and concerning the plaintiff”

1. The defamatory statement must in fact refer to the plaintiff

2. This requirement is satisfied when the plaintiff is identified by name, of course.

3.The statement is also actionable if the plaintiff’s identifiable as the subject of the statement, even if the plaintiff’s name is not actually used

4. libel proof plaintiff- plaintiff already has such a bad reputation, nothing defendant says makes it worse (makes restoring reputation difficult)

            G. Group libel

1. disparaging words about a large group of class of persons does not give rise to a libel action by any individual member of the group

                        2. the statement would not be read to apply to all members of the group

                        3. if the group is small enough so that the statement could reasonably be thought to

apply to all member of the group, an individual can bring an action

3.      over 20 the courts tend to think is too large

H.     Libel by fiction

2.      if the plaintiff is reasonably understood as the person depicted in a purported work of fiction, plaintiff has a case of action for a defamatory portrayal in the work of fiction

3.      if words are in a foreign language the plaintiff has to prove that another understood it

4.      common law rules:

a.       a defamatory statement concerning the plaintiff

b.      at least negligent publication of the statement to a third party who understands the defamatory meaning

c.       plaintiff may have to prove that the defamatory statement caused pecuniary harm

d.      at common law truth was an affirmative defense and not part of the plaintiffs prima facie case

I.        Slander per se (4 categories)

a.       a statement likely to injure the plaintiff in his trade, business, or profession

b.      a statement accusing the plaintiff of having a loathsome disease (sexually transmitted, leprocy)

c.       a statement accusing the plaintiff of a crime that either carries a serious punishment or involves moral turpitude

d.      a statement accusing the plaintiff of serious sexual misconduct

J.       Slander and pecuniary harm

a.       if the slander is not slander per se the plaintiff must prove special damages

b.      for purposes of slander, courts require proof of loss of something material value as the result of the damage to the plaintiffs reputation from the slander

c.       emotional distress by itself is not the type of injury that will make a slander actionable

d.      libel per se (defamatory on its face) does not equal slander per se à the meaning of the 2 phrases is very different

e.       libel per quod ( a pleading rule where you need extrinsic evidence to explain the defamatory meaning) does not equal slander

f.        in most jurisdictions libel is libel, you don’t need to prove pecuniary harm, damages are presumed

g.       if it is slander and one of the 4 categories of slander per se you don’t need to prove pecuniary harm

h.       only slander requires proof of actual pecuniary harm

K.    Publication

a.       the defamatory statement must be communicated by the defendant to atleast one person other than the plaintiff

b.      as part of this requirement, the plaintiff must show that the defamatory meaning of the statement was understood by those third persons to whom it was published

c.       intent or negligence:

                                                                           i.      for liability, the defendant must either have intended the publication or been at least negligent with regard to its communication to a third party

                                                                         ii.      there is no liability if the publication occurred by mistake and without fault on the defendants part

d.      publication by the plaintiff

                                                                           i.      If the plaintiff repeats a defamatory statement made by the defendant to the plaintiff alone, the defendant is usually not responsible for this “publication.”

                                                                         ii.      Exception:  “Compelled Republication” may occur if the defendant should expect that the plaintiff will have to repeat the defamation, as when the discharged employee must explain why he or she was fired.

e.        Failure to remove as Publication

                                                                           i.      In some cases courts have found a duty on the defendant to remove a defamatory statement posted on the defendant’s premises.

                                                                         ii.      This usually requires some notice on the part of the defendant and sufficient control to be able to remove the statement.

                                                                        iii.      Internet Bulletin Boards are a new twist on this old problem. 

f.        Single publication rule- the publication of one edition of a book containing defamatory statement is a single libelous wrong, this effects the SOL which begins to run with the original publication of the book, not someone who buys the book 20 years later

L.      Defamation and the 1st Amendment

a.       The common law standard:  Strict liability

                                                                           i.      Plaintiff must show that the defendant published (at least negligently) a defamatory statement about the plaintiff.

                                                                         ii.      The statement was presumed to be false. 

                                                                        iii.      Plaintiff did not have to prove that the defendant was aware that the statement was not true, or even that the defendant was negligent with regard to its truth or falsity.  In this sense, liability was strict:  if the statement was false and defamatory, defendant was liable.

                                                                       iv.      Plaintiff also had not burden to show that the defendant should have been aware that the statement referred to the plaintiff.  Here again, liability was strict.

                                                                         v.       if the defamation was libel or slander per se, plaintiff did not have to prove actual monetary loss.  Injury to reputation and resulting damages were presumed. 

b.      Federal law intervenes: federal law intervenes to protect 1st amendment interests, process began with NY Times v. Sullivan

                                                                           i.      In order to recover for defamation a public official must prove the statement was made with actual malice

1.      actual malice means the defendant knew the statement was false or made it with reckless disregard of whether or not it was false

2.      must be shown by clear and convincing evidence

3.      recklessness requires more than lack of care

4.      requires proof the publisher in fact entertained serious doubts about the truth of the statement

5.      the defendants state of mind is fair game for discovery

6.      note 6 p818

M.   Public Figures and Matters of Public Interest

a.       The New York Times standard was extended to “public figures” as well as public officials. 

b.      The next step extended the standard to any matter of public interest, even if the victim of the defamation was a private individual. 

c.       The extension was soon repudiated and a new rule developed in the Gertz case.

d.      If you had to apply the N.Y times test to every matter of public interest that would mean that private individuals would have to meet this very high standard.

e.       Candidates for public office are treated as public officials (N.Y times standard applies).  Public official applies not only to high level officials but even down the level of an ordinary police officer.

f.        Actual malice standard applies to public officials even in matters that involve their private life. 

g.       Once a person is designed a public figure or public official it is hard to go back to being a private individual.

N.    What is a Public Figure?

a.       General Purpose Public Figure:

                                                                           i.      Of such pervasive fame or notoriety that he person is a public figure in all contexts.

b.      Limited  Purpose public figures:

                                                                           i.      A public figure with respect to a particular public controversy.

                                                                         ii.      The limited purpose public figure can voluntarily become involved or can be “drawn in” to the public controversy

O.    In Goertz the court tried to determine if there is a constitutional privilege when:

a.       a newspaper or broadcaster

b.      publishes defamatory falsehoods

c.       about a person who is neither a public official nor a public figure

P.       Balancing the Interests

a.       The interest in the Balance:

                                                                           i.      The first amendment protection of freedom of the press, which is weak when the problem is false statements of fact.

                                                                         ii.      State interest in protecting personal reputation from defamatory falsehood.

b.      In New York Times, which dealt with defamation of public figures and officials, the balance was weighted strongly toward protection of speech.

c.       Striking the Balance in New York Times

                                                                           i.      The public official or public figure is entitled to less protection from defamation:

                                                                         ii.      They have greater opportunities for “self help,” b/c they have greater access to the media for correcting falsehoods.

                                                                        iii.      They have assumed the risk, in a sense, by seeking public office or public notoriety and the scrutiny that goes with them.

d.      Striking a Different Balance

                                                                           i.      The private individual has less opportunity for self-help correction, and is more deserving of protection from defamation.

                                                                         ii.      Therefore the state has a stronger interest in providing a legal remedy for injury to the reputation of a private individual.

                                                                        iii.      Therefore the Rosenbloom standard (based on whether the matter is of public interest) is wrong. 

                                                                       iv.      The crucial distinction is the status of the plaintiff.  Public official or public figure you have to prove actual malice.  Private individual the state can provide greater protection.

e.       Standards

                                                                           i.      N.Y times standard = knowingly reckless, actual malice

                                                                         ii.      Gertz = negligence standard (this has put a floor b/c you cannot have strict liability; states can apply actual malice or go down to negligence) 

                                                                        iii.      Common law = strict liability

f.        The Gertz Standard

                                                                           i.      No liability without fault.  Other than that the states may define the proper standard.

                                                                         ii.      No presumed or punitive damages unless the plaintiff proves knowledge of falsity or reckless disregard for the truth.  (New York Times standard).

                                                                        iii.      Plaintiff may only recover for “actual injury” –which means what?

g.       “Actual Injury”

                                                                           i.      Not limited to out of pocket loss.

                                                                         ii.      Impairment of reputation and standing in the community.

                                                                        iii.      Personal humiliation.

                                                                       iv.      Mental anguish and suffering.

h.       Dun & Bradstreet created a new balance

                                                                           i.      The defamation was not only about a private individual, but also involved a matter of private, not public interest

                                                                         ii.      Because only a matter of private concern was involved, the court held that presumed and punitive damages could be awarded even without a showing of actual malice

i.         Private interest v. Public interest

                                                                           i.      Speech that is of purely private concern is entitled to less protection from the 1st Amendment

                                                                         ii.      The balance is weighted more heavily towards the states interest in protection of the individuals reputation

                                                                        iii.      The state may provide remedies not available when the matter is one of public interest

j.        Public official / Public figure

                                                                           i.      Fault: malice

                                                                         ii.      Presumed damages: Yes

                                                                        iii.      Punitive damages: Yes

                                                                       iv.      Falsity: Plaintiff has the burden

k.      Private Individual / Public Issue

                                                                           i.      Fault: At least negligence

                                                                         ii.      Presumed Damages: No, if plaintiff only proves negligence

                                                                        iii.      Punitive Damages: No, if plaintiff only proves negligence

                                                                       iv.      Falsity: Media defendant, plaintiff has the burden; Non-media defendant ?

l.         Private Individual / Private Issue

                                                                           i.      Fault: Not clear (Is strict liability ok?)

                                                                         ii.      Presumed Damages: Yes

                                                                        iii.      Punitive Damages: Yes

                                                                       iv.      Falsity: Not clear for either

Q.    Deliberate Misquotation

a.       The quotation is in some sense false and known to be so by the author

b.      If this met the actual malice standard it would impose too great a burden on the author who is trying to make the verbatim quote readable

c.       In order to be malicious the quotation must materially change the meaning of the quoted statement

R.     Opinion as defamation

a.       Common law allowed an action for a defamatory expression of opinion if it falsely implied that facts existed to support the opinion

b.      No separate privilege exists for opinion; opinion is protected by the other constitutional limitations on liability for defamation

S.      Protection for opinion:

a.       The burden of proving falsity is on the plaintiff when the issue is one of public interest

b.      Hyperbolic statements that no one could believe are based on facts are not actionable

c.       Fault requirements of NY Times and Gertz provide protection

d.      Provisions for appellate review will assure that defamation law does not intrude on free speech

VI.              Privacy Torts

A.     Based on the notion that a person has a protected interest in freedom from unwanted public intrusion into his or her private affairs

B.     4 Privacy actions (must be able to distinguish these based on their elements!):

1.      Intrusion

2.      Appropriation

3.      Public disclosure

4.      False light

C.     Intrusion

1.      Involves the invasion of a person’s private space or affairs

2.      Can be invoked against spying, eavesdropping, snooping, breaking & entering, & similar invasions of a person’s home or office

3.      Elements:

a.       There must be some sort f invasion into a private area of the plaintiff’s life

b.      Intrusion can be accomplished:

1.      Physically, as by entering a persons home or office

2.      Electronically, as by wiretapping

3.      Mechanically, using a telescope to observe the plaintiff at home

c.       the intrusion must be highly offensive to a reasonable person

1.      it must be significant in scope, not trivial

2.      it must invade an area that a reasonable person would feel is truly private (observation of a person in public is normally not an invasion of privacy, no matter how much the individual being observed wishes to be left alone)

4.      Just the fact of being observed is the tort

5.      Private space is protected by intrusion:

a.       If it is not a private space the tort does not protect anything

b.      The individuals expectation of their privacy space must be a reasonable expectation, not purely subjective

6.      Distinctions:

a.       It is not necessary that the fruits of the intrusion, such as info obtained from a wiretap, be published to any 3rd person

b.      The tort is complete as soon as the offensive intrusion takes place

c.       Persons to whom the information is published are not liable for intrusion, unless one can make out a case of concerted action or vicarious liability

D.     Appropriation

1.      Involves the use of plaintiff’s name, likeness, or identity for the users benefit

2.      Based on the idea that a person’s identity may have a distinct value that should be protected from exploitation without permission

3.      Elements:

a.       The defendant appropriates (makes use of)

b.      The plaintiffs likeness or identity

c.       For defendants own use or benefit

4.      The use of plaintiff’s identity is often for commercial purposes, but need not be.  What is required for the tort is the appropriation of the plaintiff’s identity to advance some purpose of the defendant.

5.      Right of publicity:

a.       Closely related to the tort of appropriation

b.      Protects the ability of the famous to enjoy and control the benefits of their fame

c.       The famous are recognized as having the exclusive right to license the use of their names and faces

d.      Some jurisdictions regard this as a property right that survives the death of the celebrity

E.      Public disclosure of private facts

1.      Assume the matters published are true

2.      The complaint is that the matters are private and the disclosure of them is so highly offensive that plaintiff should have a cause of action to recover damages for the mental anguish suffered as a result of the public disclosure

3.      Defamation is considered personal and does not survive the death of an individual

4.      Elements:

a.       The defendant must publicize

b.      Some private information about the plaintiff

c.       The disclosure of the private information must be highly offensive to a reasonable person

d.      The information disclosed must not be a matter of legitimate public concern

5.      Publicity:

a.       Tort requires the matter be given publicity

b.      This requires more than disclosure to one other person, which would satisfy the publication requirement of defamation

c.       Widespread disclosure is required

6.      Constitutional limitations: publics right to know

a.       More offensive to the rights of freedom of press and speech than the tort of defamation since it involves no falsehood

b.      If the facts disclosed involve a matter of legitimate concern to the public, the Constitution protects the right to disclose them

c.       Those who are public figures and public officials have a narrower scope of privacy under this tort

d.      The public has a legitimate interest in even some private facts about public figures and public officials, at least to the extend that the facts have some relation to the persons office or place in the public eye

F.      False Light

1.      Protects a persons privacy interest in not being portrayed to the public in an objectionable false position (as something the person is not)

2.      Elements:

a.       The defendant must publicize some matter that places the plaintiff in a false light

b.      The false light must be highly offensive to a reasonable person

c.       The defendant must have knowledge of the falsity of the position in which the plaintiff is placed, or must act in reckless disregard of the falsity

3.      Texas does not recognize this tort (overlaps with defamation)

4.      False light and defamation

a.       Because this tort involves the publication of a falsehood, it is closely related to defamation

b.      However, the matter need not be defamatory so long as it places the plaintiff in a highly offensive false light

VII.           Civil Rights

A.     Common Law

1.      One who by a consciously wrongful act intentionally deprives another of the right to vote in a public election or to hold public office, or seriously interferes with either of these rights is subject to liability to the other

2.      The interference can be accomplished by wrongful force, duress, or fraud

B.     Statutory protection

1.      federal statutes have largely supplanted the common law actions for such deprivations of civil rights as:

a.       interference with the use of public accommodations

b.      interference with the right to vote

c.       conduct by government officials that deprives an individual of a constitutionally protected right

C.     42 USC §1983

1.      Every “person”

a.       The term includes:

1.      Individuals (so long as they act under color of state law)

2.      City, county, and other local government entities (so long as the deprivation of rights is caused by a custom or policy of the government entity)

3.      The term does not include the state itself

2.      Acting under “color” of state law

a.       Action under color of state law does not have to be action actually sanctioned or permitted by state law

b.      It includes action that violates state law, so long as the action was made possible by the authority the state gave to the individual or government official

c.       Example: an unconstitutional search by a police officer

3.      Who deprives another secured by

a.       The US Constitution, or

b.      Federal law

4.      Is liable to the person injured

5.      Rights Protected:

a.       § 1983 itself creates a remedy for deprivation of constitutional rights

b.      § 1983 does not itself create any substantive constitutional rights

c.       the courts must look to the constitution to determine the rights that may be indicated by this remedy

6.      State of mind requirements:

a.       §1983 does not itself have a state of mind requirement

b.      however, a particular state of mind may be necessary in order to constitute a violation of a persons constitutional rights

c.       Ex. in order for a state official to violate someones procedural due process rights, the official must atleast be reckless

7.      Defining the right:

a.       The first issue is whether the plaintiff has any right to a hearing at all in the particular situation

b.      If a right to a hearing does exist, a second question is whether a hearing that takes place after the injury is sufficient

8.      Bivens Actions

a.       The court finally decided that when the rights violation is accomplished by a federal official, § 1983 may not apply

b.      In the Bivens case, the supreme court created a similar action against federal officials by implying a cause of action for violation of the 4th Amendment directly from the Constitution

c.       “Special factors” may “counsel hesitation.” One such factor is the availability of a statutory remedy.

9.      Municipal Liability

a.       Municipalities are “persons” within the meaning of § 1983, and therefore may be sued under that §.

b.      Municipalities are only liable, however, if the deprivation of federal rights was caused by an official policy or custom

c.       Official policy is made by the policymaker designated by state law

d.      Municipalities do not enjoy qualified immunity, even if the individual officials do

10.  Hypo: School board made of A, B, C, and D.

a.       They suspend a student without a hearing

b.      U.S. S.C. decides student has a hearing right

c.       Student sues school board and the individual members for wrongful suspension

d.      Members of board are designated by state law as policy makers

e.       The cause of action against board would probably work even though it was determined later that student had a due process claim

f.        BUT board members (as individuals) enjoy a qualified immunity (not liable to student)

g.       The board (as a gov. entity) does not get to participate in qualified immunity

11.  Immunities

a.       Executive branch officials enjoy qualified immunity

b.      Qualified immunity can be lost if the official violated a clearly established constitutional right. This is an objective test.

c.       Judges and prosecutors, while acting as such, enjoy absolute immunity, which is an immunity that cannot be lost by improper behavior or motives

1.      This only extends to when they are functioning in the relevant capacities

2.      Ex. A judge or prosecutor will not enjoy absolute immunity with administrative decisions (like hiring/firing employees) (or a prosecutor in a press conference: defamatory comments = no absolute immunity)

a.       In these examples they enjoy qualified immunity

b.      Usually applies to § 1983 and Bivens Actions

12.  Injury and DAS

a.       Deprivation of a constitutional right does not in itself entitle the Plaintiff to DAS

b.      ∏ must prove actual injury resulting from deprivation

c.       presumed DAS are no allowed

d.      DAS based on the “value” of the right are not allowed

e.       Punitive DAS may be recovered against individual tortfeasors on a proper showing, punitive DAS may  not be awarded against government entities

13.  Structural Injunctions

a.       Structural injunctions are court orders that fundamentally restructure a state institution that is found to be engaging in systematic violations of constitutional rights

b.      Plaintiff’s burden: Must first demonstrate that they are in fact suffering a deprivation of protected rights. They must also demonstrate the need for the injunction by showing a likelihood of future harm

VIII.        Misuse of Process

A.     Malicious Prosecution

1.      Definition:

a.       Institution of criminal proceedings

b.      Lack of probable cause to initiate the proceedings

c.       Malice

d.      Termination of the proceedings in favor of the accused

e.       Damages

2.      Initiate criminal proceedings

a.       The defendant must be actively involved in beginning or continuing the criminal proceeding against the plaintiff

b.      Any formal institution of criminal proceedings will satisfy this element

3.      Absence of probable cause:

a.       The defendant must be shown to have lacked either a reasonable or honest belief in the truth of the charge

b.      A reasonable mistake of fact does not show lack of probable cause, but

c.       Instituting a criminal proceeding when a reasonable person would have investigated further shows a lack of probable cause

4.      Favorable termination:

a.       Termination means that the criminal proceeding cannot be revived and that further prosecution would require a new proceeding

b.      Favorable means that the termination was such that it could give rise to an inference of lack of probable cause

5.      Malice

a.       Defendant must be shown to have had an improper motive for bringing the action

b.      This means the defendant must have a purpose other than that of bringing a guilty party to justice

c.       Using the threat of prosecution to obtain some advantage from the plaintiff is a typical example of malicious conduct

6.      Damages recoverable include:

a.       Damage for loss of reputation

b.      Damages for emotional distress and humiliation

c.       Damages for the costs of defending against the criminal charges

7.      Defense

a.       As an affirmative defense, the defendant can undertake to prove that the plaintiff was in fact guilty of the crime

b.      The standard will be proof by a preponderance of the evidence

c.       If the guilt of the plaintiff is established to the jurys satisfaction, it is a complete defense

B.     Wrongful Civil Proceedings

1.      Elements are the same as for malicious prosecution of a criminal proceeding

2.      Some courts add the requirement of “special  injury”

3.      Special injury means an injury caused by the seizure of the plaintiff’s person or property

C.     Abuse of Process

1.      Definition:

a.       The defendant must make use of the process of the court

b.      The use must be for a purpose for which the process was not designed

c.       Note:

1.      Lack of probable cause to bring suit is not an element

2.      Favorable termination of the underlying suit is not an element

2.      Ex. Dispute between contractor and subcontractor over amount subcontractor to be paid

a.       Contractor files suit against sub claiming sub has caused damage to the project

b.      Sub counterclaims for breach of K

c.       If the contractor gets a prejudgment attachment of all of the sub’s tools in order to pressure him in to settlement, the sub has a claim for abuse of process because the purpose of the attachment is not to pressure settlement (the contractor is abusing this)

3.      Process

a.       The process of the court means some enforceable order of the court

b.      Merely filing a complaint does not constitute abuse of process, but service of the summons is part of the process of the court and may trigger abuse of process

c.       “Process” thus includes many orders and proceedings that are part of litigation

D.     Example: Seller sues buyer of apartment building for breaching agreement to refurbish units, sell as condos, and pay percentage of profits to seller

1.      Assume:

a.       Suit is for breach of K and would not affect transfer of title

b.      Suit is for rescission of sale to regain title

2.      Seller files lis pendens (notice of a pending claim used to notify potential purchasers of real property of a legal claim on the property, renders the property untransferable).  Is this malicious prosecution or abuse of process?

a.       Breach of K suit à title is not at issue, so this may be abuse of process because all it is doing is interfering with the sale and all the seller is suing for is breach of K

b.      If suit is for rescission of sale plaintiff would affect title, therefore this is an appropriate use of a lis pendens à not a suit for abuse of process

IX.              Misrepresentation

A.     Misrepresentation Actions

1.      Deceit: knowing falsity

2.      Negligent misrepresentation: when does a duty exist to use due care before speaking?

3.      Innocent misrepresentation: compare express warranty and strict liability

4.      [mutual mistake]

5.      [unilateral mistake] (4 & 5 are not misrepresentation cases but are entering into a transaction with a certain state of mind)

B.     Deceit

1. Elements:

a.       a false representation of material fact by the defendant

b.      knowledge or belief by the defendant that the representation is untrue

c.       intent by the defendant to induce the plaintiff to act in reliance on the representation

d.      justifiable reliance on the misrepresentation by the plaintiff

e.       damage to the plaintiff from relicane on the misrepresentation

3.      2 aspects of justifiable reliance:

a.       Was the representation one that a reasonable person would rely upon? (it must be material, about something that makes a difference)

b.      Did the plaintiff in fact rely upon the statement to his or her detriment? (causation element)

4.      Knowledge and investigation

a.       Plaintiff is not entitled to rely if the plaintiff in fact knows facts indicating that the representation is untrue

b.      Courts today do not impose on plaintiffs the duty to investigate statements of fact to determine their truth, unless the plaintiff is on notice of circumstances indicating further investigation is required

5.      Varieties of representation

a.       Deceit will lie for an affirmative misrepresentation of fact

b.      Deceit will also lie where the defendant actively conceals facts and prevents the plaintiff from learning them à active deception

c.       Deceit was not available when the defendant remained silent but made no effort to deflect the plaintiff from discovery or to conceal the matter

6.      Justifiable reliance

a.       In general, courts do not regard opinions as reliable, but:

1.      Statements of quantity are usually considered statements of fact

2.      Factual statements about actual sales can be relied upon

3.      Expert opinion purportedly based on actual testing can be relied upon

b.      Whatever the basis of liability, all the actions for misrepresentation require justifiable reliance by the plaintiff on the misrepresentation.

c.       The misrepresentation must cause the plaintiff to take some action and the plaintiff must have been justified in taking the action on the basis of the representation.

1.      Plaintiff may need to investigate a matter further before relying on the representation (ex. family business à before selling stock, look to the books to see what it is worth, don’t just rely on another family members representation about what the stock is worth)

2.      When a representation goes to value it is almost certainly material

7.      Prediction and Intention

a.       Predictions of the future are treated as statements of opinion

b.      Statements of intention are treated as statements of fact

1.      It is a factual matter whether the defendant in fact has the stated intention at the time the statement is made

2.      If untrue, the statement is actionable

8.      Liability for non-disclosure

a.       Silence when no duty to speak existed was not deceit but mere disclosure

b.      Rule allowed one party to take advantage of the others ignorance

c.       Courts began to develop exceptions to the non-disclosure rule by discovering a duty to speak in certain situations

1.      Failure to disclose is deceit

9.      Duty to speak

a.       If the defendant owes a fiduciary duty to the plaintiff, this creates a duty to disclose

b.      Half-truth which tells part of the story but creates a misleading impression by omitting important info is deceit

c.       Duty to disclose on parties who have access to basic info about a transaction which the other party is unlikely to be able to obtain

10.  Defendants state of mind

a.       Deceit à requires the party make the misrepresentation knowingly, or without belief in its truth, or recklessness as to its truth or falsity

b.      Some courts separately require that it be made with intent to deceive

c.       Need evidence to prove this

d.      Other types of deceit:

1.      Statements that imply a basis for knowledge that the speaker does not in fact possess

2.      Statements that misrepresent the speakers own confidence in the truth of the statement

e.       Scienter and intent to deceive

1.      The action for deceit requires scienter; making the representation with knowledge that it is untrue (or recklessness with regard to whether it is true) and with intent to deceive the other party

2.      Misrepresentations made negligently may still be actionable as negligent misrepresentation, which does not require scienter.

C.     Negligent Misrepresentation

1.      The defendant in these cases is only negligent and not intentionally deceptive

2.      Thus, liability is limited to situations (business, profession, employment, economic interest) where the defendant should understand that the matter is important and that care in providing information is essential

D.     Damages

1.      Benefit of the Bargain

a.       In a cause of action based on a fraudulently induced K, most jurisdictions allow the benefit of the bargain measure of damages.

b.      The difference between the actual value of what the plaintiff received and the value it would have had if it had been as represented (what the fraudulent misrepresentation led you to believe you were getting)

c.       Value promised – value received = value of lost bargain + consequential damages = total damages

2.      The Out-of-Pocket Measure

a.       Required in some jurisdictions

b.      Calculates the difference between the value of what the plaintiff gave and the value of what the plaintiff received

c.       Compares the actual elements of the transaction, ignores the inflated amount of what was promised

d.      Used a lot for innocent misrepresentation

e.       Value given – value received = out of pocket loss + consequential damages = total damages

3.      Consequential Damages

a.       Under either measure, the plaintiff can also recover additional consequential damages proximately caused by the fraud

E.      Negligent Misrepresentation: Liability to Third Parties

1.      Problem: In professions such as law and accounting, the professional often prepares documents for a client that the professional knows the client will show others

a.       Should the professional be liable to others not in privity of K if the documents contain negligent misrepresentations?

2.      Glanzer v. Shepard- seller of beans took beans to a public weigher who weighed the beans and provided a certificate of weight which was then given to the buyer who then paid the seller

a.       Problem occurs when the public weigher doesn’t do his job properly and overweighs the beans (not a deliberate deceit)

b.      Public weigher has no K with the buyer so he owes no duty to the buyer

c.       In this case the public weigher has a duty to the buyer because he knew that the certificate of weight would be given to the buyer, in these types of three corner relationships there may be a duty without K, weigher owed a duty to the buyer to use due care and provide an accurate certificate

3.      Ultramares v. Touche (NY case)- accountant asked by an importer to provide a financial statement which was then given to the client, client forged accounts receivable, accountant did a financial statement without testing to see if there was a real transaction behind these receivables, accountant then gave a certificate which said they had audited these financial statements and certified the true financial situation of the company

a.       Audit certificate means something and is relied upon, money is advanced on the strength of the statement

b.      Accountant may not really know to whom the statement may be given, how much it will be relied upon, etc. so it is not a tightly bounded three corner relationship, it looks like classic privity of K problem

c.       For negligent misrepresentation this was not enough to impose a duty on the account to all potential parties who would rely on the negligently prepared statement à although negligent misrepresentation doesn’t work here, fraud might

4.      Credit Alliance (New NY Rule): Accountants are liable for negligence when:

a.       They are aware that the statements are to be used for a particular purpose

b.      By a particular known party

c.       Some conduct by the accountant links them to the third party who will rely on the statement (like the three corner relationship in the Shepherd case)

5.      Foreseeability

a.       R2T §552: Liability to the limited group of persons that the accountant knows will rely on the information

1.      With regard to a transaction that the accountant intends the information to influence

b.      Other jurisdictions have a rule where accountants are liable for all foreseeable consequences of their actions

c.       Know all 3 rules: NY rule, R2T, and other jurisdictions rule

X.                 Competitive Torts

A.     Is competition a tort?

1.      Is a lawful act (running a competitive business) a tort if it is done for improper motives?

a.       Motive is irrelevant.

b.      Look to see if threats or misrepresentations were made.  These are the focus of the analysis when looking to the question of method as the key to whether or not competition is improper.

c.       Unusual case where the court looks at motive and determines that it was intending to cause injury and therefore is unlawful.

2.      Is it a tort to announce that one offers the lowest prices, thus causing customers not to enter into Ks with ones competitors?

3.      Is it a tort to offer a special low price to prevent a particular customer from dealing with one’s competitors?

B.     What makes acts in competition wrongful, malicious, and otherwise actionable is the method of competition.

C.     Competition exception à economic injuries inflicted in the course of competition do not give rise to a tort claim

D.     Misrepresentation v. Lying

1.      In misrepresentation the customer is complaining about the misrepresentation by the defendant, here the plaintiff is usually not the customer, but is the defendants competitors in business that are losing money because the defendant has made false statements about his own products or the plaintiffs products.

E.      Injurious Falsehood, aka Disparagement

1.      A false statement calculated to damage a plaintiff’s pecuniary interest

2.      Publication to a third person

3.      Malice in the publication

4.      Special damages in the form of pecuniary loss

a.       The most powerful proof of special damage would be proof of the loss of specific Ks or customers

b.      Hard to prove because you cant tell whether or not someone would have done business with you, and if they did not do business with you based on the misrepresentation by the defendant

c.       In the absence of such proof, plaintiff must prove general loss of business, plus some proof that excludes other possible causes of the loss

F.      Product Disparagement

1.      The Courts are reluctant to try to police most advertising comparisons, since regulation could impede the operation of the market

2.      As with “opinion” in the law of defamation, however, a factually untrue statement about a competitor’s product may be actionable as injurious falsehood.

a.        When a statement is verifiable, it is likely to be taken as factual.

G.     False Advertising

1.      The Lanham Act provides a remedy for competitors injured by false advertising.

2.      If the statement is literally false, no effect on customers need by shown

3.      If the statement is merely deceptive, it must be shown to be likely in fact to deceive the customer and to influence the purchasing decision.

4.      Basic problem in false advertising is to demonstrate that there are false statements being made.

H.     Predatory Pricing

1.      Selling below cost for the purpose of destroying another’s business

2.      Courts police such actions because it seems to demonstrate a market failure, which in turn may justify judicial interference

3.      Motive for the conduct is not an issue

I.        Intentional Interference with Contractual Relations

1.      Elements:

a.       Defendant:

1.      Intentionally and

2.      Improperly

3.      Interferes with the performance of a K

4.      By inducing or causing a party to the K not to perform

5.      Resulting in pecuniary loss from the failure to perform

2.      Indirect Interference

a.       Interference does not have to be direct, in the sense of actually urging the party to breach or offering a more advantageous deal

b.      Indirect interference can occur by conduct that makes it more difficult for the party to perform the K

c.       When the interference is indirect, it is crucial to prove that the defendant knew of the K

3.      Improper Purpose

a.       Defendant must act with an improper purpose, but this is satisfied if the defendant desired to interfere with the performance of the K without any justification for such action

b.      Malice, in the sense of a desire to cause harm, or in the sense of spite or ill will, is not required.

J.       Interference with Business Relations

1.      Elements

a.       Defendant:

1.      Intentionally and

2.      Improperly

3.      Interfered with another’s prospective contractual relationship

4.      By inducing or preventing a third person not to enter in or continue the relationship

5.      Resulting in pecuniary loss from the failure to enter in to the K

2.      The difference is that there is not a K.

3.      Competitors Privilege (p.990)(add in)

K.    Misappropriation

1.      Defendant diverts to itself the profitable benefits created by the efforts of another, thereby depriving the plaintiff of the fruits of its effort

2.      The foregoing description the tort cannot possibly be taken seriously, as it would effectively make competition impossible

3.      Court recognizes that improper appropriation is that by depriving plaintiff of profit, you actually threaten the availability of the service or product

4.      Problems:

a.       Consider what defendant did wrong:

1.      Did it lie to customers? 

2.      Did it violate plaintiff's patent? 

3.      Did it violate plaintiff’s copyright? 

4.      Did it take plaintiff's property? Did its conduct damage the signal or deprive plaintiff's customers of the signal?

L.      Right of Publicity

1.      Closely related to the tort of Appropriation is the right of publicity.

2.      The right of publicity protects the ability of the famous to enjoy and control the benefits of their fame

3.      The famous are recognized as having the exclusive right to license the use of their names and faces

4.      Some Js regard this as a property right that survives the death of the celebrity

a.       Question is who owns identity of deceased celebrity

b.      New area of property law

c.       Brands, trademarks, etc, become very valuable property; becomes important to control the use of these valuable commodities

d.      The copyright that one owns in original works (movies, books, etc) was recently extended so that it would last for longer period of time

e.       Driving force behind that extension was Disney corp; earliest Mickey cartoons about to expire; Disney concerned that it was going to lose this very valuable property right; they want to protect it in US as well as worldwide; lot of money at stake

f.        Important question is does it survive death















XI.              Review

A.     100 multiple choice

B.     A lot of products liability and defamation

C.     Products liability question à Look to see what type of theory of recovery you are being asked about à Elements and what you have to prove are different for each type

D.     Defamation questions à Have to do 2 levels of analysis, pay attention to what the question is asking you about à Focus on constitutional issues? Focus on common law elements?  Does it not specify?  Then you may have to do both levels of analysis

E.      Under the common law whether or not something turned out to be defamatory or true would result in strict scrutiny

F.      If you have a general defamation question you have to sort out where it falls within the chart, according to the limitations, and then determine whether or not under the circumstances the plaintiff would be able to recover

G.     Ultrahazardous was the term used in the first restatement, this has pretty much been superseded à now the multi-factor test of the 2nd restatement as well as abnormally dangerous activity is used

H.     Privity is no longer a limitation in negligence à the question would be whether or not a duty was breached, what sort of facts would constitute a breach

I.        Be aware of both tests and understand how they are different for design defects

J.       Know the elements of the 1983 cause of action

K.    For negligent misrepresentation liability to 3rd parties we were given 3 tests à which rule we need to apply will be specified

L.      Strict liability for injuries caused by trespassing domestic animals

M.   Trespassory injuries to real property, apply SL rule, SL is not imposed for injuries caused by pets (dogs and cats)

N.    Has to be something more than conduct by the employee within the scope of employment to justify placing punitive damages on the employer  à look to the policy and look to the owners reaction

O.    Most of the questions will be fact situation, then questions; there may be some more specific questions about the proper rule or what a rule says; there will not be a question on facts of a case

P.      Will get questions about what a result would be under the common law

Q.    To Possner PL in the learned hand theory represents your expected accident costs, B is the cost of avoidance

1.      You get the same precations under negligence or SL because the way a rational actor will approach a precaution is to say what are the accident costs involved if I don’t take this precaution

2.      Individual looks at the costs of avoidance and the accident costs and determines whether or not it is worth it to avoid the accident

3.      If the person is acting in a negligence situation, the rational actor looks at the numbers (given by the formula) and says let the accidents occur, when the D gets sued there will be no liability for negligence because due care does not require the expenditure

4.      For SL there is the same result, the rational actor will think he will be liable for the accidents if they occur, so he might as well save the cost of avoidance because the accident will be cheaper

5.      Who bears the cost of the accidents that still happen?  For negligence the costs are left on the victim.  In SL the actor, the defendant, who is making this calculation will end up paying the accident costs.